¶1dissenting: The defendant, the owner of the Academy of Music, a theatre in the city of New Orleans, appeals from the judgment of the court a qua condemning him to pay plaintiff, a colored man, one thousand dollars damages because the latter was rudely refused admittance to the entertainment on Saturday evening, March 7,1874, by one David Owen, the doorkeeper of said theatre. The ticket which plaintiff presented to the doorkeeper cost one doliar at the ticket office, and the following is a copy:
¶2KPA1DESTG s bidwell’s
¶3ACADEMY OE MUSIC.
¶4ADMISSION TICKET.
¶5CONTRACT
¶6Between the Managers of the Academy of Music and the Holder of this Ticket:
¶7It is agreed, and this ticket is sold with the understanding, that the management shall have the right to refuse admission to the holder upon returning the regular price of the ticket.
¶8After being refused admittance by the doorkeeper, plaintiff did not apply to the office for a return of the price of the ticket, and it has not been returned to him.
¶9Defendant, who was at the time sick and knew nothing of the conduct of the doorkeeper on this occasion, was sued a few days thereafter by plaintiff for five thousand dollars damages.
¶10Under article thirteen of the constitution and act No. 38 of the acts of 1869, an act to enforce the same, plaintiff had the same right to enter the theatre as any other citizen, but he had no greater right. The fact that he was a colored man ought not to give plaintiff the right to recover a larger amount of damages against defendant than if he were a white man. The law of the State, as I understand it, in regard to the right to recover for a breach of contract or for damages arising ex delicto gives no greater remedy to one class of citizens than to another. If a white' citizen may not recover one thousand dollars for a breach of contract, the consideration of which was one dollar, a colored citizen ought not simply because of his color.
¶11If a white citizen could not recover damages ex delicto from Bidwell because, like plaintiff in this suit, he failed to allege and prove that defendant could have prevented the damage occasioned by his servant, the *385doorkeeper, but failed to do it, plaintiff, a colored man, ought not to recover.
¶12To discriminate in favor of a colored man in administering the law, or in enforcing an obligation arising from a breach of contract or ex delicio, would be to destroy that equality before tho law which the constitution of 1868 and the recent amendments to the constitution of the United States were intended to accomplish. They were never intended to confer on the colored citizen greater rights than the white citizen is permitted to enjoy.
¶13Yiewing the case, therefore, without regard to the color of £>laintiff, I think the court erred in condemning defendant to pay one thousand dollars damages because his doorkeeper rudely refused to admit plaintiff to the theatre on Saturday evening, March 7,1874.
¶14Plaintiff wholly failed to allege and prove that defendant authorized the conduct of the doorkeeper on the occasion referred to, or that he could have prevented the damage but failed to do so.
¶15“Masters and employers are answerable for the damages occasioned by their servants and overseers in the exercise of the functions in which they are employed. Teachers and artisans are answerable for the damage caused by their scholars or apprentices while under their superintendence. In the above eases responsibility only attaches when the masters or employers, teachers and artisans, might have prevented the act which caused the damage and have not done it.” Revised Code, 2320.
¶16The same article was in the previous Codes of this State, and has been frequently interpreted by this court. In 1830, in tho case of Palfrey vs. Kerr, 8 N. S. 503, which was an action for damages for tho acts of an agent or servant, this court hold “ that plaintiff can not recover, because he has not shown that the defendants could have prevented the acts from which the damages they claim are said to have resulted.”
¶17In 1835, in the case of Keene vs. Lizardi, 8 La. 26, this court held that “smart-money or vindictive damages can only be given against tho wrong-doer or offender by way of punishment; but not against persons who are only consequentially liable on account of their relation to the wrong-door, as tho principal for tho acts of the agent.”
¶18In 1840, in tho case of Ware vs. Parataria and Lafourche Canal Company, 15 L. 170, this court hold that “mastors and employers are responsible for tho damage occasioned by their servants and 'overseers in tho exercise of their functions, but this liability only extends to cases where the masters or employers might liavo prevented the act which caused the damage and did not.”
¶19In Duncan vs. Hawks, 18 La. 548, and in numerous other decisions, the same ruling was had.
¶20Under the well-settled jurisprudence of tho State plaintiff can not *386recover against defendant ex delicio, because he failed to allege and prove that the wrongful act of' the doorkeeper was authorized by the defendant, or that lie could have prevented the damage, but failed to do so. Can he recover ex contractu or for breach of the contract which arose when he acquired the ticket ? It is proved that for many years all tickets have issued for admittance to this theatre with a condition annexed just as the one which plaintiff acquired; that this condition is attached to all tickets that are sold for the theatre owned by defendant. The condition is a part of the contract.
¶21Now the question is, not whether plaintiff was entitled under the article of -the constitution and the statute quoted to enter the theatre upon paying the usual price, one dollar, but whether, having purchased a ticket with the condition attached “ that the management shall have the right to refuse admission to the holder upon returning the regular price,” plaintiff can recover smart-money or vindictive damages against defendant, because the doorkeeper rudely refused to admit him on Saturday evening, March 7,1874.
¶22If the condition was not in violation of a prohibitory law or against public policy, and I can not see that it isj it is a part of the contract and can not be separated from id; and it must be considered in determining whether there was a breach of contract. It is the law between the .parties. The ticket with the condition attached is produced in evidence by plaintiff to show his right to enter the theatre when he was wrongfully denied admittance by the doorkeeper. And upon this contract or rather upon the breach thereof I do not find that plaintiff is entitled to vindictive damages against defendant.
¶23Like the breach of any other contract, he is entitled only to the damages he sustained. The evidence fails to show that he sustained any damages beyond the value of the ticket and the costs of this litigation.
¶24Now, whether Bid well is entitled to obtain license and conduct a thea-tre upon issuing tickets as ho does is a question not presented in this case. And whether plaintiff had the right under the statute carrying into effect the thirteenth article of the constitution to demand an unconditional ticket, and if refused to claim damages, is also a question not presented in this case.
¶25In the purchase of the ticket with the condition attached plaintiff made a contract with defendant which precludes the idea of vindictive damages for a breach thereof; and if he fails to recover what was not contemplated in his contract he will be without cause to complain.
¶26For the reasons stated I dissent in this case.