Jones v. Broadway Roller Rink Co.

• Decision Date: 10 November 1908
• Citation: 118 N.W. 170,136 Wis. 595
• Parties: JONES v. BROADWAY ROLLER RINK CO.
• Court: Wisconsin Supreme Court

136 Wis. 595

118 N.W. 170

JONES

v.BROADWAY ROLLER RINK CO.

Supreme Court of Wisconsin.

Nov. 10, 1908.

Appeal from Superior Court, Douglas County; Charles Smith, Judge.

Action by Albert Jones against the Broadway Roller Rink Company. From a judgment granting insufficient relief, plaintiff appeals. Reversed and remanded.

Action for damages, alleging that the defendant, a corporation, was conducting a place of public accommodation and amusement, to wit, a roller skating rink, in the city of Superior; that plaintiff paid the price of admission and for skating and entered said rink, but was prohibited by the defendant from skating for the reason that the plaintiff was a colored man; that he was thus unjustly denied equal enjoyment and privilege by illegal discrimination based wholly upon color, to his damage. The answer admits the conduct of the roller skating rink, and denies all other allegations. After trial a jury brought in a verdict for the plaintiff for $25. The clerk entered judgment, and taxed plaintiff's costs. Upon motion for review of the clerk's action, the court entered an order that the clerk strike out and disallow all costs to the plaintiff, and that he tax and allow costs to the defendant. Whereupon judgment was entered reciting such original taxation by the clerk, and said order on review thereof, and the off-setting of defendant's costs against plaintiff's damages, and ordering recovery by the defendant of the balance of $5.56. From this judgment, the plaintiff appeals, but settled no bill of exceptions.Archibald McKay, for appellant.

W. P. Crawford, for respondent.

DODGE, J. (after stating the facts as above).

We cannot doubt that the action attempted to be stated in the complaint and met by the answer was the action expressly authorized by section 4398c, St. 1898: “Any person who shall deny to any other person, in whole or in part, the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, restaurants, saloons, barber shops, eating houses, public conveyances on land or water, or any other place of public accommodation or amusement, except for reasons applicable alike to all persons of every race or color, or who shall aid or incite, such denial, or require any person to pay a larger sum than the regular rate charged other persons for such accommodations, * * * shall be liable to the person aggrieved thereby in damages not less than five dollars with costs,” etc. The complaint alleges that the defendant's roller skating rink was a place of public accommodation or amusement, and that the exclusion was on the ground of plaintiff's color, neither of which allegations are of any materiality or significance to an action either of tort or contract independent of such statute. We think, also, that nothing in the record shows that the roller skating rink maintained by the defendant was not a place of accommodation or amusement within the terms of the statute. It is alleged to have been such place, and presumably the evidence went as far as possible in support of such allegation. A public roller skating rink is undoubtedly a public place of amusement. This, however, probably would not suffice to bring it within the statute if it were entirely different in character from the places of accommodation or amusement specifically named therein, for by reason of the context the rule noscitur a sociis applies, and the other places of accommodation and amusement intended by the statute are only such as bear some resemblance to those specificallynamed. Our statute is quite exhaustive in its specifications, much more so than the statutes of some of the other states. Thus it includes in the specifications both saloons and barber shops, which have been held in other states not to be included in a statute omitting to specifically name them, but containing the words “other places of accommodation and amusement.” Faulkner v. Solazzi, 79 Conn. 541, 65 Atl. 947, 9 L. R. A. (N. S.) 601;Kellar v. Koerber, 61 Ohio St. 388, 55 N. E. 1002. By their specification in the Wisconsin statute the genus or class to which resemblance must be found is, of course, enlarged. Appellant's counsel has given us no aid whatever by citation of authorities or reference to the construction of similar statutes in other states. We find ourselves unable, however, to conceive any class of places of public accommodation or amusement which would not include a roller skating rink to which the public were generally invited upon no condition but the payment of a fixed charge--public, in as broad a sense as is the common carrier or the innkeeper, the exclusion from which of an individual or a class must infer discrimination and denial of privileges which all other persons enjoy by virtue merely of their membership in the public or general community. Public accommodation and amusement is the test prescribed by our statute. The amusement offered by the usual skating rink is to the public as such and generally. It differs radically from the tender of accommodation offered by the ordinary merchant or professional man who, while he impliedly, by opening the door of his shop or office, invites every one to enter, does so only for the purpose of selling to each individually either service or merchandise. This distinction has been often noted. We append a few illustrated cases: Public eating house, Humburd v. Crawford, 128 Iowa, 743, 105 N. W. 330; boot-blacking...