Coleman v. Middlestaff

• Decision Date: 08 January 1957
• Citation: 147 Cal.App.2d Supp. 833,305 P.2d 1020
• Parties: 147 Cal.App.2d Supp. 833 Ada COLEMAN, etc., Plaintiff and Appellant, v. Dr. MIDDLESTAFF, Defendant and Respondent. C.A. 9058. Appellate Department, Superior Court, Los Angeles County, California
• Court: California Superior Court

Page 1020

305 P.2d 1020

147 Cal.App.2d Supp. 833

Ada COLEMAN, etc., Plaintiff and Appellant, v. Dr. MIDDLESTAFF, Defendant and Respondent.

C.A. 9058.

Appellate Department, Superior Court, Los Angeles County, California.

Jan. 8, 1957.

Charles B. Johnson, Pasadena, for appellant.

A. L. Wirin and Allan M. Carson, Los Angeles, for amicus curiae.

Draper, Porter & Kramer, Monrovia, for respondent.

KAUFFMAN, Judge.

This is an appeal by plaintiff from a judgment that plaintiff take nothing, entered after an order sustaining a demurrer to the complaint without leave to amend.

Plaintiff, Christopher Coleman, a minor, sued through his guardian ad litem, Ada Coleman, his mother. In the first cause of action the complaint alleged that plaintiff is a Negro and a citizen of the United States; that at all times defendant operated and maintained a dental office in Duarte, California, which was open to the use of the general public, at which defendant offered services for the extraction of teeth among other things; that on or about the 10th of March, 1955, plaintiff was suffering from a toothache and called defendant's office and made an appointment to have a tooth extracted; that upon arriving at defendant's office he was informed that defendant did not give dental service to Negroes. Plaintiff further alleged that by reason of the conduct of defendant he was deprived of rights guaranteed by Sections 51 and 52 of the Civil Code, the Fourteenth Amendment to the United States Constitution, and Article I, Section I, of the California Constitution, and prayed for $2,000 in damages. The second cause of action by incorporation substantially restated the first cause of action.

We must determine whether the complaint does, or may be amended to, state a cause of action, since if it can be so amended it was an abuse of discretion to sustain the demurrer without leave to amend. Gaglione v. Coolidge, 1955, 134 Cal.App.2d 518, 522, 286 P.2d 568.

The first question is whether a dentist's office is to be considered as one of the 'other places of public accommodation or amusement' within Section 51 of the Civil Code, or is to be included within the meaning of similar language in Section 52 of the Civil Code.

In Long v. Mountain View Cemetery Ass'n, 1955, 130 Cal.App.2d 328, 329, 278 P.2d 945, the court held that the words 'all other places of public accommodation or amusement' within Section 51 of the Civil Code mean all other places of like nature to those enumerated, and that it does not include cemeteries. The particular places enumerated are inns, restaurants, hotels, eating-houses, places where ice cream or soft drinks of any kind are sold for consumption on the premises, barber shops, bath houses, theaters, skating rinks, and public conveyances. A similar enumeration is made in Civil Code, Section 52. We do not consider that a dentist's office is a place of like nature to those enumerated. In Rice v. Rinaldo, Ohio App., 119 N.E.2d 657, the court was faced with a factual situation similar to the one before us, and it held that a dentist's office is not a place of public accommodation or amusement. The court stated, supra, 119 N.E.2d at page 659: 'A dentist may be classified as one of the learned professions like unto a physician or surgeon. An office of a physician or surgeon does not connote that it is a place of public accommodation.'

The court also quoted the following statement from 41 Am.Jur. 135: 'In the absence of statute, a physician or surgeon is under no legal obligation to render professional services to everyone who applies to him or seeks to engage him. Physicians are not public servants who are bound to serve all who seek them, as are innkeepers, common carriers, and the like.' This is the law of this state. McNamara v. Emmons, 1939, 36 Cal.App.2d 199, 97 P.2d 503. We believe that this statement may also be applied to dentists. Carnahan, 'The Dentist and the Law.' p. 42, citing Roberts v. Parker, 1932, 121 Cal.App. 264, 8 P.2d 908. In view of the foregoing, plaintiff cannot state a cause of action under Sections 51 and 52 of the Civil Code. Cf. 14 C.J.S., Civil Rights, § 6, pp. 1165-1166.

Appellant also argues that the public policy of California is opposed to racial discrimination, and that this policy applies to private as well as public action,...