Johnson v. Westland Theatres, Inc., 15941.

• Decision Date: 24 November 1947
• Docket Number: 15941.
• Citation: 187 P.2d 932,117 Colo. 346
• Parties: JOHNSON v. WESTLAND THEATRES, Inc.
• Court: Colorado Supreme Court

187 P.2d 932

117 Colo. 346

JOHNSON v. WESTLAND THEATRES, Inc.

No. 15941.

Supreme Court of Colorado, in Department.

November 24, 1947

Rehearing Denied Dec. 15, 1947.

Error to District Court, Pueblo County; Harry Leddy, Judge.

Action for damages under the civil rights statute, '35 C.S.A. c 35, §§ 1, 2, by Florence Johnson against Westland Theatres Inc., a corporation. To review a judgment of dismissal, the plaintiff brings error.

Reversed and remanded with directions.

Thomas Campbell, of Denver, for plaintiff in error.

L. E Langdon, of Pueblo, for defendant in error.

HILLIARD Justice.

An action by plaintiff in error, as plaintiff below, against defendant in error, as defendant, for damages. The action is based on the civil rights statute of Coloardo '35 C.S.A c. 35, §§ 1, 2. Defendant, proceeding on the premise, as said, that plaintiff had failed to prosecute her said action, moved dismissal thereof. The motion was granted, and judgment to that end, and for costs against plaintiff, was formally entered.

Plaintiff, a Negro, alleged that March 28, 1944, she 'purchased * * * a ticket entitling her to admission to said Colorado Theatre,' a moving picture house, which defendant was conducting and operating in Pueblo; that after purchasing the ticket, she entered the said theatre and was seated therein; that at all times relative hereto she deported herself quietly, properly and decorously, but notwithstanding, and for the assigned reason that she was a Negro and was not permitted to be seated where she was, and only that, the servants and employees of defendant, proceeding wrongfully, illegally and insultingly against plaintiff, and otherwise so demeaning themseves toward her, that, finally, she was forced to leave the theatre. May 8, 1944, based on the foregoing, plaintiff, proceeding by employed counsel, filed a complaint against defendant, seeking damages, as already mentioned; May 27, 1944, defendant filed its motion for a bill of particulars. It further appears that nothing further toward progressing the case was done until June 17, 1947, when plaintiff, appearing by her present counsel, responded to defendant's motion to that end, already stated, by filing a bill of particulars; July 2, 1947, defendant filed motion to dismiss the action for failure to prosecute, as already has been stated.

In considering the motion to dismiss, the court received evidence in relation to the delay. Sufficiently stated, it appeared from the showing thus made, that from the beginning plaintiff was seeking to have her original attorney, and to whom she had paid a satisfactory retainer, give attention to prosecuting her said action. She testified that she went to said attorney at frequent intervals--every week or so--since the case was filed, and, while he was not always present when she called, very often he was there. On the occasions when her attorney was absent when she called, she left word of her visit and the purpose thereof. When she found him in his office, always he promised to give the matter prompt attention. Plaintiff's husband also called on his wife's attorney in the interest of making progress in the case, and he likewise received assurance of the requisite effort on the part of counsel. Not only was there such evidence from plaintiff and her husband to the tenor we have indicated, but the Honorable J. Arthur Phelps the other judge of the same district court, voluntarily appeared Before the judge who...