Terrell Wells Swimming Pool v. Rodriguez

• Decision Date: 02 February 1944
• Docket Number: No. 11368.,11368.
• Citation: 182 S.W.2d 824
• Parties: TERRELL WELLS SWIMMING POOL et al. v. RODRIGUEZ.
• Court: Texas Court of Appeals

182 S.W.2d 824

TERRELL WELLS SWIMMING POOL et al. v. RODRIGUEZ.

No. 11368.

Court of Civil Appeals of Texas. San Antonio.

February 2, 1944.

Rehearing Denied March 1, 1944.

Writ of Error Refused by Supreme Court October 4, 1944.

Appeal from 57th District Court, Bexar County; Robt. W. B. Terrell, Judge.

Suit in equity by Jacob I. Rodriguez against the Terrell Wells Swimming Pool, Inc., and another for a mandatory injunction requiring defendants to offer and extend equal accommodations, facilities and privileges at corporate defendant's swimming pool to plaintiff and all other persons of Hispanic or Mexican descent. From a judgment granting the injunction, defendants appeal.

Reversed, and judgment denying injunction entered.

Geo. G. Clifton, of San Antonio, for appellants.

M. C. Gonzales, of San Antonio, and H. S. Lattimore, of Fort Worth, for appellee.

PER CURIAM.

This suit was instituted by Jacob I. Rodriguez on behalf of himself and all other persons similarly circumstanced, seeking a mandatory injunction requiring defendants, Terrell Wells Swimming Pool, Inc., and H. E. Stumberg, its president and general manager in the operation of the swimming pool, to offer and extend equal accommodations, advantages, facilities, and privileges to plaintiff and all other persons of Hispanic or Mexican descent.

Upon a trial before the court without the intervention of a jury judgment was rendered granting the injunction as prayed for.

From this judgment Terrell Wells Swimming Pool, Inc., a private corporation, and H. E. Stumberg, its president and manager, have presented this appeal.

The law in this State is well settled that in the absence of Civil Rights Legislation to the contrary the proprietor of a place of amusement which is privately operated can refuse to sell a ticket to and may thereby exclude any person he desires from the use of his facilities for any reason sufficient to him, or for no reason whatever. If a ticket has been purchased by a person whom the proprietor desires to eject from the premises, this may be done by refunding the price of the ticket and not using unnecessary force to make the ejectment. A ticket to a swimming pool is merely a revocable license. Jordon v. Concho Theatres, Tex.Civ.App., 160 S. W.2d 275; Kelly v. Dent Theaters, Tex. Civ.App., 21 S.W.2d 592; Boswell v. Barnum & Bailey, 135 Tenn. 35, 185 S.W. 692, L.R.A.1916E, 912; 26 R.C.L. 704; Bowlin v. Lyon, 67 Iowa 536, 25 N.W. 766, 56 Am.Rep. 355; Woollcott v. Shubert, 217 N.Y. 212, 111 N.E. 829, L.R.A.1916E, 248, Ann.Cas.1916B, 726; Cecil v. Green, 161 Ill. 265, 43 N.E. 1105, 32 L.R.A. 566; United States v. Washington, C.C., 20 F. 630; 14 C.J.S., Civil Rights, § 3, p. 1161.

The rule, as it exists in Texas, is well stated in 26 R.C.L. 704, as follows: "In this country, the great weight of authority is to the effect that the right of a purchaser of a ticket to enter and remain at a theater, circus, race track or private park, is a mere revocable license. The proprietor of an amusement enterprise may deny admission to anyone, and a person having entered may be forced to depart on request, and if he refuse to depart, he may be removed with such force as is necessary to overcome his resistance. No action will lie, in the absence of some statute regulating admission to places of amusement, for refusal to admit any person. If the license to enter be revoked by the proprietor and a ticket holder ejected without unnecessary force, the only remedy of the holder of the ticket is an action for breach of the contract, and his damages are limited to the price of the ticket and any expenses incident to the purchase of the ticket and attending the place of amusement."

Appellee contends, however, that this rule has been changed by H. C. R. No. 105, passed by the regular session of the 48th Legislature, Acts 1943, p. 1119, and the Governor's proclamation issued June 25, 1943.

On May 6, 1943, the Honorable Coke Stevenson, Governor of the State of Texas, approved House Concurrent Resolution 105, adopted by the 48th Legislature of the State of Texas, wherein it was resolved as follows:

"That the...