Crawford v. Robert L. Kent, Inc.

18 Mass. App. Dec. 81

• Court: Massachusetts District Court, Appellate Division
• Decided: October 30, 1959
• Docket: No. 456725; No. 456974
• Status: Published

Opinions

Gillen, J.

These are actions of tort in which the plaintiff seeks to recover a forfeiture or penalty for an alleged discrimination against the plaintiff on account of his color. In one instance the defendant is a corporation which operated a dancing school and in the other the manager of the school. The trial judge found for the plaintiff.

The plaintiff appeared at the dance studio to take dancing lessons and was refused lessons by the manager because of his color, the manager claiming he had no colored instructors and that he could not force his instructors to dance with anyone.

Robert L. Kent, Inc., was chartered by the Commonwealth of Massachusetts under G. L. c. 156 as a business corporation. The corporation is doing business as Fred Astaire Dance Studios of Boston. It is a profit organization and is licensed by the City of Boston as a dancing school. G. L. c. 272, §98 provides that whoever makes a distinction, discrimination or restriction on account of religion, color or race with certain exceptions, relative to the admission of any person to, or in his treatment in, “any place of public accommodation, resort or amusement, as defined in section ninety-two A of chapter two hundred and seventy-two”, or a person aiding or inciting such distinction, discrimination or restriction, shall be subject to a penalty and forfeiture as therein set forth.

The second paragraph of G. L. c. 272, §92A defines, “A place of public accommodation, resort or amusement,” with much detail and closes with a provision that “no place shall be deemed to be a place of public accommodation, resort or amusement which is owned and operated by”, among others “any organization operated for charitable or educational purposes.” (Emphasis added).

In effect, the trial judge ruled that the dancing school in question was not an organization operated for educational purposes. The defendants claim to be aggrieved by this ruling.

In his brief the plaintiff sets forth that the issue in the .case is the correctness of this ruling. We think the defendant corporation was an organization operated for educational pui poses.

The articles of organization set forth that the corporation is formed to conduct a school for dancing for the purpose of imparting instructions in the various forms and arts of dancing and to conduct a school of dancing for the purpose of educating and training enrollees for the purpose of acquiring the necessary proficiency to act as instructors in the art of dancing.

In many cases people might desire to become dancing instructors as a profession and if so this organization was chartered for that purpose as set forth in its articles or organization. Should it be held to be any the less an educational institution than a school of drama, art, radio, public speaking or home making?

In Assessors of Boston v. Garland School of Home Making, 296 Mass. 378, at 386, it was held that “ ‘training young women in the principles of home making’ is clearly educational.1'

In Mount Herman Boys School v. Gill, 145 Mass. 139, at page 146, the .court said, “Education is a broad and comprehensive term. It has been defined as ‘the process of developing and training the powers and capabilities of human beings.’ To educate, according to one of Webster’s definitions, is ‘to prepare and fit for any calling or business or for activity and usefulness in life.’ Education may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all.”

In German Gymnastic Assoc. v. Louisville, 117 Ky. 958, the court said, “Education is not confined to the improvement and cultivation of the mind. It may consist of the cultivation of one’s religious or moral sentiments. It likewise may consist of the development of one’s physical faculties. See: Commissioners of District of Columbia v. Shannon & Luchs Const. Co., Inc., 17 F2d 219; Re Wolf’s Estate, 290 NYS 99.

The plaintiff argues further that the phrase in G. L. c. 272, §92A, viz: “Any organization operated for charitable or educational purposes” should be construed as “charitable educational purposes” and as the defendant corporation was a profit organization it does not come within the exception above cited. But a short answer to this contention is that if the legislature intended to have organizations operated for charitable educational purposes solely in this exception it would have said so and it would never have inserted the “or” between “charitable” and “educational”.

In Marble v. Treas. and Rec. Gen., 245 Mass. 504, at 508, the court said, “The word ‘or’ is frequently used in the sense of ‘and’ when this is necessary to give effect to the purpose of the parties. ... It was said also in Gaynor's Case, 217 Mass. 86, at pages 89 and 90, after recognizing the distinction: It is not synonymous with ‘and’ and is to be treated as interchangeable with it only when the obvious sense requires it, or when otherwise the meaning is dubious. But the word ‘or’ in its ordinary use and also in accurate meaning is a disjunctive particle. It marks an alternative and not a conjunctive. It indicates one or the other of two or several persons, things or situations and not a combination of them. ... It is construed as having a different meaning only when the context and the main purpose to be accomplished by all the words used seems to demand it.”

No case has been called to our attention setting forth that a profit organization cannot be an organization operated for educational purposes.

The order is

Finding for plaintiff vacated.

Finding to be entered for defendants.