Hutson v. the Owl Drug Co.

CAMPBELL, J.,

pro tem.

This is an action for damages for alleged violation of section 51 of the Civil Code relating to personal rights and for assault and battery. The judgment-roll only is before the court.

Appellant bases its appeal upon the following specifications: 1. That the findings of fact show clearly that the defendant was not responsible for the assault found to have been committed; 2. That the findings of fact do not show a violation by the defendant of the plaintiffs’ civil rights; 3. That the defendant’s demurrer to the complaint was erroneously overruled.

As to the first specification, it is not claimed by respondent that appellant was responsible for any injury resulting to appellant from the assault found to have been committed by its employee. Respondents’ position being that the fact of the assault, together with the fact that the employee Tucker remarked in a loud voice: “What did you serve the nigger fori I wouldn’t have served her. She coidd have set there until tomorrow,” established the fact that respondent was not accorded the same accommodation applicable alike to all citizens. Section 51 of the Civil Code provides: “All citizens within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of inns, restaurants, hotels, eating houses, places where ice-cream vi-so ft drinks of any kind are sold for consumption on the

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premises,” etc., and section 52 of the same code provides: “Whoever denies to any citizen, except for reasons applicable alike to every race or color, the full accommodations, advantages, facilities and privileges enumerated in section fifty-one of this code, or who aids or incites such denial, or whoever makes any discrimination, distinction or restriction on account of the race or color . . . for each and every such offense is liable in damages,” etc.

The court found that the plaintiff was at the time alleged an American citizen and a negro; that she entered the establishment of defendant corporation at the corner of Fifth and Broadway, Los Angeles, California, and took her place at the soda fountain where the general public is served with food and drinks, and gave her order to one Mr. Tucker, who was then one of the employees of defendant corporation, then acting in the regular course of his employment, assisting about and in dispensing food and drinks for defendant corporation; that said employee Tucker did refuse to serve plaintiff Lela Hutson; that after waiting about twenty minutes another employee served her with her order, but placed same amongst dirty dishes on the counter; that said employee Tucker remarked in a loud voice: “What did you serve the nigger for? I wouldn’t have served her; she could have set there until tomorrow”; that thereafter the said employee Tucker hit the plaintiff on the face and threw a cup of coffee on her; that he struck her a severe blow on the jaw and hit her on the breast with the cup of coffee; that at the time of the aforesaid occurrence there was a large number of people in the store; that plaintiff suffered great humiliation and embarrassment and received painful injuries to her cheek and jaw; that she was not accorded the full accommodations, advantages, facilities, and privileges applicable alike to and given by defendant corporation to persons of the white race. As conclusion of law the court concludes that plaintiffs are entitled to recover of and from defendant damages in the sum of five hundred dollars.