RESTRICTION IN THE PRIVILEGES OF A THEATER ON ACCOUNT OF COLOR.

Court of Appeals for Jefferson County.

#### Malinda Guy v. The Tri-State Amusement Company.

Decided, December Term, 1917.

*Damages*— Infringement *of Civil Rights*— Color *or Race Discrimination*— Place *of Public Amusement*— Proprietor *Liable Under Section*12941, *General Code, When.*

The proprietor of a picture show who refuses another the right or privilege of sitting in a certain or particular part of the theater or auditorium during the performance or display of pictures, and such refusal is on account of race or color and for no other reason, is liable to be penalized under Section 12941, General Code.

*Edward McKinley*and *E. DeWitt Erskine,*for plaintiff in error.

*Harry L. May*and *W. C. Brown,*contra.

Farr, J.

This is a proceeding in error brought to reverse a judgment of the court, of common pleas of this county, and the parties sustain the same relation here as in the court below. On the 17th day of December, A. D. 1916, Malinda Guy, the plaintiff in error, filed her petition in the court below seeking to recover from the Tri-State Amusement Company for an alleged violation of Sections 12940 and 12941 of the General Code, which *232provide that there shall be no denial of privileges at inns and certain other places to a citizen, by reason of color, except for reasons applicable alike to all citizens regardless of color.

The plaintiff alleges in her petition that on or about the 1st day of August, A. D. 1916, she went into the Olympic Theater in the city of Steubenville in company with one Isaac E. Stady, a colored man, and a theological student of Wilberforce University, she herself being a colored woman. She further alleges in her petition that she purchased two tickets at the price of ten cents each; that she surrendered the tickets to the person at the entrance, passed into the theater, and was seated in the fifth row, the second seat in, in the center tier of seats; that the usher approached her and requested her to abandon her seat and be seated on the right-hand side or in the right-hand tier of seats in said theater.

It is further alleged in the petition that she left said theater, surrendering her tickets at-the window where she had received them. To this petition an answer is filed by the defendant company, the defendant in error here, stating or admitting that it had rules and regulations providing for the conduct of people within said theater, and that it was the duty of its usher or ushers to show people to their seats in said theater, but denying that there had been any discrimination against Malinda Guy, or Isaac E. Stady by reason of their color. The cause came on to be heard and was tried to a jury. There was a verdict for the defendant and judgment upon the verdict, to which error is prosecuted in this court.

As above stated the action below is predicated on Sections 12940 and 12941 of the General Code. The former section reads as follows:

> “Whoever, being the proprietor or his employee, keeper or manager of an inn, restaurant, eating house, barber-shop, public conveyance by land or water, theater or other place of public accommodation and 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, advantages, facilities or privileges thereof, or being a person who aids or in*233cites the denial thereof, shall be fined not less than fifty dollars nor more than five hundred dollars or imprisoned not less than thirty days nor more than ninety days, or both. ’ ’

And the latter section provides as follows:

> -“Whoever violates the next preceding section shall also pay not less than fifty dollars nor more than five hundred dollars to the person aggrieved thereby, to be recovered in any court of 'competent jurisdiction in the county where such offense was committed. ’ ’

The petition below sought to recover under and by favor of this latter section. Mrs. Guy says that she purchased said tickets for admission on said evening of August 1st; entered said theater, surrendered the tickets, went down five rows from the rear of the theater, and sat down in the second seat in from the aisle in the center section of seats; that soon after she had taken her seat she looked back and saw her companion, Mr. Stady, conversing with the usher, Mr. Russell, who came to her a few 'minutes later and asked her in a genteel manner to take a seat on the other side, designating the right-hand side of the theater; that she asked the usher why, and he said again, “Will you kindly take a seat on the right-hand side of the theater?” She again interrogated him to know why, and he said, ‘ ‘ On account of your color.” This testimony is substantially corroborated by Mr. Stady. He says that he had a conversation with the same usher and was going to sit with his companion, Mrs. Guy, when the usher forbade him to do so, and- he then said he had gone to the theater in company with her and he wished to sit with her. The usher said that he could not do so in the center section, and that he must be seated on the right-hand side of the theater. Mrs. Guy then returned to where Mr. Stady was, and the two left the theater together, but later returned in company with a friend who had some conversation with the usher with reference to the matter, and it is not denied that the usher stated that he had invited the two colored persons to be seated on the right-hand side of the theater on account of their color.

*234If there were any denial of that fact the record settles it once and for all at page 36, in the examination of Mr. Russell, who was the usher on that occasion. He says: “ I said, kindly remove to the other side of the house. She said, Why? I said, On account of your color.” So that Mr. Russell admits that the request for the removal to the right side of the auditorium was because they were colored persons.

It is urged in argument that the Tri-State Amusement Com-, pany, operating this theater, had the right to make such reasonable rules and regulations as they saw fit to make with reference to the seating of persons in their theater, and that they were permitted to make a rule authorizing or requiring their usher to show people to seats within their theater. There can be no question but what such rules would be permissible under the law of this state. However, it must be noted by said Section 12940 that it is provided that .all citizens, regardless of color or race, shall have the full enjoyment of the accommodations, advantages, facilities or privileges thereof, that is, at inns, places of amusement and other places enumerated in said statute.

The matter of these people being seated within the theater was a privilege, and if this section of the General Code is rightly understood, it is not simply a privilege of seeing the pictures or hearing the music or meeting and greeting their friends, but all patrons are entitled to fully enjoy *aKke*all the privileges accorded to patrons within the theater.

It might be contended here that these persons had just as good an opportunity to see the pictures or vaudeville performance, if such there may have been, seated on the right-hand side as if they were seated in the center section. However, if these colored people were required to be so seated they would only be allowed partial enjoyment of the privileges of that theater, because white persons were permitted to occupy the center section as well as tire other parts of said auditorium; that is to say, they could enjoy the privilege of seeing the pictures, they could enjoy the privilege of hearing the music, they might enjoy the privilege of greeting their friends and acquaintances within the building, yet at the same *235time they were certainly denied some of the privileges that were given to persons of the white race, because the latter might enjoy the additional privilege of the center section of seats.

For instance, if two persons of the white race had purchased tickets for a like consideration and seated themselves in the center section of seats, under the rules and regulations of this theater they would not have been called upon to have- taken seats on the left-hand side or right-hand side. Therefore, these colored people were directed to sit upon the right-hand side of the theater, which was a place set apart for their use and they were not permitted to sit in other parts of said auditorium. It is urged, and with considerable force in argument, that theater managers have a right to make such reasonable rules and regulations for the conduct and control of people within their theater as may seem to them necessary; however, the provisions of said Section 12940 must be kept in mind, wherein it is provided that privileges shall be extended *alike*to persons of *'all*races. Therefore, no rules or regulations can be made in violation' of or that would contravene this section of the statute.

Somewhat helpful is a well considered case from this immediate jurisdiction; it is *The Youngstown Park & Falls Street Railway Co.*v. *Tokus,*4 Ohio Appellate Reports, 276; 22 C.C. (N.S.), 417. This was a case where two young colored persons, Tokus and his sister, attended a Sunday school picnic; having purchased tickets they went upon the floor of the dancing pavilion, and after having been there some time they were bidden by the person in charge of the platform to leave, which they did.

Suit was brought, and in passing upon the case it is held:

> *“A*proprietor of a public dancing pavilion, who ejects another therefrom after he had been admitted thereon, on account of his color or race and for no other reason, is liable to pay0.a penalty, under Section 12941 of the General Code.”

The very section upon which suit is predicated here.

*236Tokus and his sister were well behaved and orderly colored persons. It was hinted and even suggested that by reason of greater grace of movement on the dancing floor than some of the other dancers, jealousy of persons of the white race was excited, and for that reason their dismissal was brought about.

What are the circumstances in this case? Here was this young theological student and this lady, both persons of good character. Was there any reason why they should be discriminated against? Is it not true that under the provisions of the foregoing sections of the statute they *were*discriminated against ? To hold otherwise would be to render these sections as sounding brass. Said sections were passed by our Legislature, not for any imaginary, but a real purpose. A little more consideration, a little more willing obedience to these laws on the part of' the people of the white race might render some of the problems which have arisen a little less perplexing.

The charge of the court below was clear, concise and explicit. The jury certainly did not comprehend it. The record clearly discloses a violation of these sections of the statute; that the plaintiff in error here was entitled to recover under said Section 12941 there can be no question.

It follows, therefore, that by reason of the jury failing to comprehend the instructions of the court, that the case must be reversed and remanded for a new trial, which is done accordingly.

Pollock, J., and Metcalfe, J., concur.