Fletcher v. Coney Island, Inc.

• Decision Date: 04 April 1955
• Parties: , 60 O.O. 218 FLETCHER, Appellee, v. CONEY ISLAND, Inc., Appellant.
• Court: Ohio Court of Appeals

Page 259

100 Ohio App. 259

136 N.E.2d 344, 60 O.O. 218

FLETCHER, Appellee, v. CONEY ISLAND, Inc., Appellant.

Court of Appeals of Ohio, Hamilton County.

April 4, 1955.

Syllabus by the Court.

1. In the absence of a statute enlarging equitable jurisdiction, it is outside the power of a court of equity, in an action between private persons, to grant an injunction to prevent the operator of a place of public amusement from denying to anyone for any reason whatsoever access to the facilities of such place of amusement.

2. The provisions of Sections 12940, 12941 and 12942, General Code, Sections 2901.35 and 2901.36, Revised Code, for a penalty and compensatory damages, where 'the proprietor or * * * employee * * * [of any] place of public * * * amusement, denies to a citizen, except for reasons applicable alike to all citizens and regardless of color or race, the full enjoyment of the accommodations * * * thereof,' and that 'either a judgment in favor of the person aggrieved, or the punishment of the offender upon an indictment * * * shall be a bar to further prosecution for a violation of such sections,' create a new right; prescribe the only remedies available for the denial of admission to a place of public amusement because of color or race; and exclude the granting of injunctive relief therefore.

Rendigs, Fry & Kiely, Concinnati, for appellant.

Walter S. Houston, Michael M. Turpeau, Webster W. Posey and Joseph H. Johnson, Cincinnati, for appellee.

MATTHEWS, Judge.

This is an appeal by the defendant from a judgment of the Court of Common Pleas (see 121 N.E.2d 574), enjoining it at all times when the Coney Island Park and its facilities are open to the public generally, from denying to the plaintiff admission to the park and the opportunity to fully enjoy its facilities because of her race or color, or because of her membership in the National Association for the Advancement of Colored People or in the Cincinnati Council on Human Relations, or for any other reason not applicable alike to every citizen.

The appeal, which originally was on both questions of law and fact, was reduced to one on questions of law only by the appellant and is now presented to this court upon the record made in the trial court.

In her petition, the plaintiff alleges that she is a Negro, a citizen of the United States and the state of Ohio and a resident of the city of Cincinnati; that the defendant is a corporation for profit organized and existing under the laws of the state of Ohio and at all times referred to in her petition was the owner and operator of Coney Island, a place of public accommodation and amusement in Hamilton County, Ohio; that on July 2, and July 4, 1953, the defendant, acting through its duly authorized agents, refused to admit her to Coney Island and denied to her the full enjoyment of the accommodations, advantages, facilities and privileges of Coney Island; and that this denial was in violation of Section 12940 of the General Code, Section 2901.35, Revised Code, in that it was based on reasons not applicable alike to all citizens and because of her race and color and notwithstanding that she had tendered payment of the admission price to the defendant's agent in charge of receiving or collecting the admission price.

The plaintiff also alleges that the conduct of the defendant constituted a denial to her of her rights as a citizen under the laws of Ohio, and, that as a result, she had suffered embarrassment and humiliation and had incurred expense in endeavoring to exercise the rights denied to her by the defendant.

The plaintiff further alleges that unless enjoined the defendant will continue to violate Sections 12940 and 12941, General Code, Section 2901.35, Revised Code, for which she would suffer irreparable damage and for which she has no adequate remedy at law.

The petition closes with a prayer for a temporary and permanent injunction restraining the defendant, its agents, employees and those under contractual relations with it, from denying to her admission to Coney Island and the full enjoyment of the accommodations, facilities, advantages and privileges thereof, because of her race or color, or for any other reason not applicable alike to all citizens.

After the court had overruled a demurrer to this petition, the defendant filed an amended answer in which, after admitting its corporate capacity, it denies that on July 2, and July 4, 1953, it operated a place of public accommodation and amusement, and, by way of explanation of its denial, sets forth that on July 2 it was under contract with Second-Third Ward Civic and Social Club and on July 4 to the Guiding Star Lodge, Knights of Pythias, No. 45, giving to them the exclusive right to designate the persons who might or might not be admitted to Coney Island on those dates.

By way of further explanation, the defendant alleges that it received instructions from the aforesaid organizations to refuse admission to members of the N. A. A. C. P. or the C. C. H. R.; that the exclusion was based upon and because of previous unprovoked, unlawful, disorderly, and subversive conduct of the members of those groups at the approach to Coney Island, which conduct was detrimental to the peace and safety of the members and guests of the organizations using the park and to the citizens of the state of Ohio and of the United States; and that members of the N. A. A. C. P. and C. C. H. R. and those acting in concert with them were undesirable at the picnics scheduled by the organizations enjoying the park facilities.

The defendant alleges that the ground of exclusion was applicable to all, regardless of race or color or any consideration not equally applicable to all, and that white as well as colored members of those organizations were excluded without discrimination.

A reply was filed, placing all the allegations inconsistent with the allegations in the petition in issue.

At the conclusion of the trial, the court granted the injunction, as already noted. The judgment is based on a general finding, but the opinion of the trial judge was filed as an original paper, and we are aided in our review of this record by recourse to it, from which we are informed of the reasoning upon which the conclusion was based.

The evidence shows that the plaintiff sought admittance to Coney Island on only two occasions, that is, on July 2, and July 4, 1953, and that on each occasion she was denied admittance on, at least, the ostensible ground that she was a member of or associated with members of the N. A. A. C. P. or the C. C. H. R., one or both, and that on previous occasions members of those organizations had committed unlawful and disorderly acts. There was other evidence tending to prove that the defendant habitually excluded Negroes, and that the plaintiff's exclusion was in fact in accordance with that practice and for no other reason.

The trial court found that the discrimination was because of the plaintiff's race and color and not for reasons applicable to all.

We cannot say that the trial court's finding in that regard is manifestly against the weight of the evidence.

The trial court found also that the defendant was in control of and responsible for the operation of Coney Island on July 2, and 4, 1953, and chargeable with the acts of those who excluded the plaintiff.

We cannot say this conclusion is manifestly against the weight of the evidence.

The plaintiff had never been a patron of or applied for admittance to Coney Island prior to July 2, 1953. Although she prays for an injunction restraining the defendant from excluding her, neither in her pleading nor in her testimony did she indicate an intention to return to Coney Island as a patron.

The defendant admitted that it would refuse to admit the plaintiff to Coney Island and the enjoyment of its facilities in the future for the reasons assigned for exclusion on July 2, and 4, 1953.

There is no evidence of any prior conviction of the defendant for violating Sections 12940 and 12941, General Code, Section 2901.35, Revised Code, or that the defendant would refuse to obey an authoritative mandate of the criminal law. However, the trial court has found that the defendant's conduct on July 2, and July 4, 1953, violated the penal provisions of Sections 12940 and 12941, General Code, and we are of the opinion that this court would not be justified in disturbing this finding or any other finding of fact.

We, therefore, have before us for review a case in which it appears that the defendant, a private corporation, on two previous occasions denied the plaintiff, because of her race and color, admittance to Coney Island, a place of public entertainment; that no attempt has been made to enforce the provisions of Sections 12940 and 12941, General Code, by criminal prosecution, or by an action to recover the penalty; and no evidence that the plaintiff contemplated returning to Coney Island as a patron in the future.

The question is, whether under these circumstances the plaintiff is entitled to an injunction requiring the defendant to hold itself in readiness to admit the plaintiff to its park without any discrimination at any and all times she may choose to avail herself of its facilities? Plaintiff's counsel point to their client's undoubted right and assert it is the kind that should be enforced by writ of injunction. On the other hand, defendant's counsel contend that it is the kind of personal right which equity never attempted to enforce, and, furthermore, in this instance, the assumption of equity jurisdiction is excluded by the terms of Sections 12940 and 12941, General Code, which are penal statutes.

We quote Sections 12940 and 12941, General Code, Section 2901.35, Revised Code, in full:

'Whoever, being the proprietor or his employe, keeper or manager of an inn, restaurant, eating house, barber shop, public conveyance by air, land, or water, theater, store or other place for the sale of...