Taylor v. Cohn

• Decision Date: 27 February 1906
• Citation: 84 P. 388,47 Or. 538
• Parties: TAYLOR v. COHN. [*]
• Court: Oregon Supreme Court

84 P. 388

47 Or. 538

TAYLOR v. COHN. ^[*]

Supreme Court of Oregon

February 27, 1906

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

Action by Oliver Taylor against S. Morton Cohn. Judgment for defendant. Plaintiff appeals. Reversed.

McCants Stewart, for appellant.

Alexander Bernstein, for respondent.

BEAN C.J.

This is an appeal from a judgment in favor of the defendant, on demurrer to a complaint. The complaint alleges that plaintiff is a colored person residing in the city of Portland, and that the defendant is the owner and proprietor of a theater or place of amusement in that city; that on or about the 1st of August, 1904, the plaintiff went to the box office of the defendant and purchased of his agent tickets for five box seats in his theater for a certain performance; that thereafter, and during the hours of general admission and before the performance, plaintiff, conducting himself above reproach, scorn, or ridicule, applied for admission to such theater, presenting the tickets aforesaid; that to his great shame, mortification, and humiliation the defendant's agents refused to allow the plaintiff the accommodation of such seats, and said to him, "You are colored people and it is a rule of this house not to allow negroes to occupy boxes, and you'll have to exchange your tickets" that plaintiff refused to exchange his tickets, and was thereupon requested by defendant's agents to leave the theater; that he was accompanied by his wife and had as his guests three friends, and was greatly disappointed, disturbed in mind, insulted, and humiliated by defendant's refusal to allow him equal accommodations in the theater with other persons; that by reason thereof he has been embarrassed and damaged in the sum of $5,000, and demands judgment in that amount.

If the complaint states a cause of action in tort or for trespass only, the demurrer was unquestionably properly sustained regardless of the question whether in this state persons can be discriminated against on account of color. A ticket to a theater or other place of amusement is a mere license, revocable at the pleasure of the theatrical manager. It is true it constitutes a contract between the proprietor and the purchaser of the ticket, and whatever contractual duties grow out of such relation the proprietor is bound to perform or respond in damages for breach of his contract, but he is not liable in an action for trespass or in tort. "A theater ticket," say the editors of the Enc.Pl & Pr., "being a mere license to the purchaser, which may be revoked at the pleasure of the theatrical manager, upon such revocation, if the person attempts to enter, or if, having previously entered, he refuses to leave upon request, he becomes a trespasser, and may be prevented from entering or may be removed by force, and can maintain no action of tort therefor. His only remedy is by an action on the contract to recover the money paid for the ticket and damages sustained by the breach of the contract implied by the sale and delivery of such ticket." 21 Enc.Pl. & Pr. 647.

Among the authorities sustaining this doctrine are Wood v Leadbitter, 13 M. & W. 838; McCrea v. Marsh, 12 Gray (Mass.) 211, 71 Am.Dec. 745; Burton v. Scherpf, 1 Allen (Mass.) 133, 79 Am.Dec. 717; Purcell v. Daly, 19 Abb.N.C. (N.Y.) 301; Horney v. Nixon (Pa.) 61 A. 1088; Collister v. Hayman, 71 A.D. 316, 75 N.Y.Supp. 1102. And it makes no difference whether the ticket is one for general admission or for particular seats or a designated portion of the house. The intimation in Drew v. Peer, 93 Pa. 234, that a theater ticket for a particular seat is more than a license, and is in the nature of a lease, entitling the holder to the possession of the seat during the performance for which it was sold, was recently declared by the Supreme Court of that state in Horney v. Nixon, supra, not to be the law. In the latter case the plaintiff had purchased two reserved seats for a...