Chase v. Knabel

• Decision Date: 22 June 1907
• Citation: 46 Wash. 484,90 P. 642
• Court: Washington Supreme Court
• Parties: CHASE v. KNABEL.

90 P. 642

46 Wash. 484

CHASE v. KNABEL.

Supreme Court of Washington

June 22, 1907

Appeal from Superior Court, Pierce County; Mason Irwin, Judge.

Action by Lewis W. Chase against Rudolph Knabel. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Fullerton J., dissenting.

S. F McAnally and Charles L. Wescott, for appellant.

Lawrence Sledge, for respondent.

ROOT, J.

Respondent who is a colored man, although the complaint does not allege the fact, brought this action against appellant, who was the owner and manager of a restaurant in Tacoma, and two waiters employed by appellant in the restaurant. The complaint set forth two causes of action--the first based upon an assault and battery committed by these waiters in improperly ejecting plaintiff from the restaurant, the second for alleged refusal of equality of civil rights. The trial resulted in a verdict for plaintiff in the sum of $400, for which amount judgment was entered against each and all of the defendants, after the denial of a motion for a new trial. From the judgment as against appellant, this appeal is prosecuted.

It is strenuously urged by appellant that there is no evidence to sustain the second cause of action; that the plaintiff's color had nothing to do with his being ejected from the restaurant. The evidence does not support this cause of action. Plaintiff himself in his testimony made no claim that the occurrence was in any way occasioned by reason of his color, and testified that he had always been served and treated properly theretofore in appellant's restaurant.

It is also contended that the action of the waiters in assaulting and ejecting plaintiff was not within the scope of their employment. The facts shown by the evidence were about these Plaintiff had been eating from time to time in this restaurant during a period extending over more than 14 years. On the evening in question he entered the restaurant and gave his order to one of the waiters, who started for the kitchen apparently with the intention of bringing his dinner. After the waiter went out plaintiff stepped to the street door and, upon returning, saw a lady sitting in that part of the restaurant which is ordinarily occupied by women patrons. This lady was employed in an establishment where the plaintiff sometimes worked, and he had frequently there seen her and spoken to her and she to him with reference to the work he was doing. He approached the table where she was sitting, reading a newspaper, and spoke to her, receiving no response. Thinking she did not hear him, as he says, he again addressed to her a remark of a jocular character. She looked up in an apparently embarrassed manner and nodded, and at this moment the waiter, having returned with plaintiff's dinner, came over, shook him, and told him that that was no place for him, and to come out of there and eat his dinner, and plaintiff says that the waiter told him not to be insulting the lady. Plaintiff remarked that he was acquainted with the lady. The waiter responded in substance that he did not care if he was, for him to immediately come out of there and eat his dinner, and proceeded to push him along toward the table, in which direction the plaintiff proceeded to go, protesting, however, that he had not insulted the lady, and that he was acquainted with her. In his excitement he passed by the table, and then turned around, and the waiter told him to sit down or else get out of there, and the next moment placed plaintiff's hat upon his head and took him by the arm and started him toward the door, and another waiter seized the...