Greenberg v. Western Turf Assn.

HENSHAW, J.

This case is between the same parties and similar to that of

Greenberg

v.

Western Turf

Association, 140 Cal. 357, [73 Pac. 1050]. Plaintiff recovered judgment before a jury, and from that judgment and from an order refusing its motion for a new trial defendant appeals.

Defendant first complains of the court’s refusal to instruct the jury to render a verdict in its favor; the contention herein being that upon the undisputed facts Green and Newman, who ejected the plaintiff, were not employees of the defendant, but of Mr. Morse, proprietor of the Morse Detective Agency, and that, as Morse was an independent contractor, the doctrine of

respondeat superior

should have been applied to him, and not to the defendant. The evidence, however, upon the question was conflicting, and the court properly submitted the matter for determination to the jury.

It is next contended that the act under which plaintiff sought his recovery is unconstitutional, and in this regard it is insisted that the construction put upon the act in Green

berg

v.

Western Turf Association,

140 Cal. 357, [73 Pac. 1050], is erroneous. Herein appellant contends that the stab ute is in contravention of the fourteenth amendment to the constitution of the United States and section 1 of the declaration of rights of the state constitution, and this court is asked to reconsider the construction which formerly was put upon the act. The argument of appellant in this respect seems to be that as at common law the purchaser of a ticket to a place of amusement held only a revocable license, and the proprietor of such a place of amusement could either refuse the holder of the ticket admission or eject him after admission, not being responsible in tort, but merely in contract for the price of the ticket and the necessary expenses incurred by the purchaser, no subsequent legislation by the state can modify this common-law rule, except in one particular, and that is, that the exclusion cannot be by way of race discrimination, and because of “race, color, or previous condition of servitude,” and that, as the act in question is not designed