Newman v. Piggie Park Enterprises Appendix

    APPENDIX

(ftrnirt of tljp Hotted States
OCTOBER TERM, 1967

No. 339

A nne  P. New m an , S haron W . N eal and J ohn M ungin ,

Petitioners,

P iggie Park E nterprises, I nc ., a corporation 
and L. M aurice B essinger.

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR TH E FOURTH CIRCUIT

PETITION FOR CERTIORARI FILED JULY 8, 1967 
CERTIORARI GRANTED OCTOBER 9, 1967



INDEX TO APPENDIX

PAGE

Docket Entries ...............................................................  la

Complaint ....................................................................... 2a

Answer ............................................................................. 9a

First Amended Answer.................................................. 12a

Motion to A m end...........................................................  15a

Affidavit in Support of Motion to Amend ............... 17a

Second Amended Answer.............................................. 18a

Trial Transcript.............................................................  22a

Plaintiffs’ Witnesses

Sharon Neal ...........................................................  26a

Sharon Miles .......................................................... 36a

Defendants’ Witnesses

Merele Brigman ...................................................... 47a

Jemell Richardson .................................................. 97a

L. Maurice Bessinger ............................................  103a

Opinion of the District C ourt......................................  135a

Opinion of the Court of Appeals ..............................  159a



Docket Entries

Answer ......................................

First Amended Answer...........

Motion to A m end....................

Affidavit in Support of Motion 
To Amend ............................

Second Amended Answ er......

Trial H eld .............................. .

Opinion and Judgment in 
District Court .......................

Notice of A ppeal.......................

Opinion and Judgment in 
Court of Appeals

Com plaint.................................... Filed: December 18, 1964 

Filed: February 5, 1965 

Filed: August 23, 1965 

Filed: March 19, 1966

Filed: March 19, 1966 

Filed: March 30, 1966

April 4, 5, 1966

Filed: July 27, 1966 

Filed: August 9, 1966

Filed: April 24, 1967



2a
In t h e

H&mttb Gkmrt at Appeals
F or the E astern District of S outh Carolina 

Columbia D ivision 

Civil Action No. AC-1605

A nne P. New m an , S haron W. Neal 
and John M ungin ,

Plaintiffs,
—vs.—

Piggie Park E nterprises, I nc., a Corporation 
and L. M aurice B essinger,

Defendants.

Complaint

(Filed: December 18, 1964)

1.

The jurisdiction of this Court is invoked pursuant to 
Title 28 U. S. C., Section 1343(3) and Section 1343(4). 
This is a suit in equity authorized by and instituted pur­
suant to Title 2 of the Act known as the “ Civil Rights Act of
1964”, ------Stat.--------, and Title 42 U. S. C., Section 1983.
The jurisdiction of this Court is invoked to secure protec­
tion of civil rights and to redress deprivation of rights, 
privileges, and immunities, secured by (a) the Fourteenth 
Amendment to the Constitution of the United States, Sec­
tion 1; (b) the Commerce Clause, Article 1, Section 8,



3a

Clause 3, of the Constitution of the United States; (c) 
Title 2, of the Act known as the “ Civil Eights Act of 1964”, 
------ Stat.------- , providing for injunctive relief against dis­
crimination in places of public accommodations; and (d) 
Title 42 U. S. C., Section 1981, providing for the equal 
rights of citizens and all persons within the jurisdiction 
of the United States.

Complaint

2.

Plaintiffs bring this action in their own behalf and of 
others similarly situated pursuant to Rule 23(a)(3) of the 
Federal Rules of Civil Procedure. There are common ques­
tions of law and fact affecting the rights of Negro persons 
to use the goods, services, facilities, privileges, advantages 
and accommodations of the Piggie Park Restaurants, owned 
and operated by the defendants herein, without discrimina­
tion or segregation on the ground of race or color. The 
persons constituting the class are so numerous as to make 
it impracticable to bring them all before this Court. A 
common relief is sought. The interests of said class are 
adequately represented by plaintiffs.

3.

This is a proceeding for a temporary and permanent 
injunction restraining defendants from continuing or main­
taining any policy, practice, custom and usage of withhold­
ing, denying, attempting to withhold or deny, or depriving 
or attempting to deprive, or of otherwise interfering with 
the rights of plaintiffs and others similarly situated to 
admission to and full use and enjoyment of the goods,



4a

services, facilities, privileges, advantages and accommo­
dations of the Piggie Park Restaurants owned and operated 
by the defendants herein without discrimination or segre­
gation on the ground of race or color.

4.

Plaintiffs are Negro citizens of the United States and 
of the State of South Carolina, residing in the City of 
Columbia and are classified as Negroes under the laws of the 
State of South Carolina.

Complaint

5.

Defendant Piggie Park Enterprises, Inc. is a corporation 
duly organized and chartered under the laws of the State 
of South Carolina. Said defendant owns and/or operates 
several restaurants in various communities in the State 
of South Carolina, two or more of which are located in the 
City of Columbia. Defendant L. Maurice Bessinger is the 
President of said corporation and is general manager 
of the various restaurants operated by the corporate de­
fendant. In said restaurants, defendants serve and offer 
to serve interstate travelers and defendants’ operations 
affect travel, trade, traffic, commerce, transportation or 
communication among, between and through the several 
states, the District of Columbia or foreign countries, terri­
tories and possessions. A substantial portion of the goods 
which defendants serve in said restaurants move in com­
merce.



5a

6.
Each of the above named plaintiffs has been denied 

service at one or more of the restaurants operated by the 
defendants.

A. On or about July 3, 1964, plaintiff John Mungin 
entered one of the restaurants operated by defendants at 
No. 1430 Main Street in the City of Columbia, South Caro­
lina and attempted to purchase food. Plaintiff was not 
served and was required to leave the premises solely be­
cause of his race and color.

B. On or about August 12, 1964, plaintiffs Anne P. 
Newman and Sharon W. Neal attempted to purchase food 
at two of the drive-in restaurants operated by defendants 
in or near Columbia, South Carolina. Plaintiffs were told 
that they could purchase food at said restaurants but that 
they could not consume the food on the premises.

Complaint

7.

Plaintiffs were denied and deprived service in restau­
rants owned and operated by defendants herein because 
of the defendants’ well established and maintained policy, 
practice, custom and usage of discriminating against 
Negroes and of denying them service in said restaurants 
in violation of plaintiffs’ rights to the full and equal en­
joyment of the goods, services, facilities, privileges, ad­
vantages and accommodations of places of public accommo­
dation without discrimination of segregation on the ground 
of race or color as secured by (a) the Fourteenth Amend­
ment to the Constitution of the United States; (b) the Com­
merce Clause, Article 1, Section 8, Clause 3, of the Con­



6a

stitution of the United States; (c) Title 2, of the Act known
as the “ Civil Rights Act of 1964”, ------ Stat.------- , providing
for injunctive relief against discrimination in places of 
public accommodation; and (d) Title 42 U. S. C., Sec­
tion 1981.

8.

Plaintiffs allege that the racially discriminatory practices 
of the defendants are in continuance of a long established, 
maintained and well publicized policy of the defendants in 
the operation of said restaurants and of the avowed pur­
pose of said defendants to continue said policy. The State 
of South Carolina has no State law and the City of Colum­
bia has no local law prohibiting the racially discriminatory 
practices described above and establishing or authorizing 
the State or Local authority to grant or seek the relief 
prayed herein. Plaintiffs have no plain, adequate or com­
plete remedy at law to redress these wrongs and this suit 
for injunction is the only means of securing adequate relief. 
Plaintiffs are now suffering and will continue to suffer 
irreparable injury from defendants’ policy, practice, cus­
tom and usage as set forth herein.

Complaint

9.

On account of the above mentioned unlawful acts of 
the defendants and on account of the maintenance of said 
policy, practice, custom and usage in violation of the con­
stitution and laws of the United States as aforesaid, plain­
tiffs have employed attorneys and have been forced to file 
this action and have incurred expenses and have become 
obligated to pay counsel fees on account of the filing of 
this action.



7a

W herefore, plaintiffs respectfully pray that upon the 
filing of this complaint, as may be proper and convenient 
to the Court, the Court advance this cause on the docket 
and order a speedy hearing of said action and upon said 
hearing:

(a) That the Court issue a preliminary injunction, en­
joining defendants, their agents, employees, successors and 
all persons acting in concert with them and at their direc­
tion from continuing or maintaining any policy, practice, 
custom or usage of denying, abridging, withholding, con­
ditioning, limiting or otherwise interfering with plaintiffs 
and other persons similarly situated in the admission, 
usage, and enjoyment of the goods, services, facilities, 
privileges, advantages and accommodations of the restau­
rants owned and operated by defendants and any other 
restaurants owned and operated by the defendants on the 
ground of race or color as contrary to the Fourteenth 
Amendment to the United States Constitution, the Com­
merce Clause, Article 1, Section 8, Clause 3, of the United
States Constitution, Title 2, ------  Stat. ------  of the Act
known as the “ Civil Eights Act of 1964” and Title 42 
U. S. C., Section 1981.

(b) That the Court enter a permanent injunction, en­
joining defendants, their agents, employees, successors 
and all persons acting in concert with them and at their 
direction from continuing or maintaining any policy, prac­
tice, custom or usage of denying, abridging, withholding, 
conditioning, limiting or otherwise interfering with plain­
tiffs and other persons similarly situated in the admission, 
use and enjoyment of the goods, services, facilities, privi­

Complaint



8a

leges, advantages and accommodations of the Piggie Park 
Restaurants and any other restaurants owned and operated 
by the defendants on the ground of race or color as con­
trary to the Fourteenth Amendment to the United States 
Constitution, the Commerce Clause, Article 1, Section 8,
Clause 3, of the United States Constitution, Title 2, ------
Stat. ------  of the Act known as the “ Civil Rights Act of
1964” and Title 42, U. S. C., Section 1981.

(c) Allow plaintiffs their costs herein including rea­
sonable attorney fees for plaintiffs’ attorneys and for such 
other and additional relief as may appear to the Court 
to be equitable and just.

Complaint



9a

Answer

(Filed: February 5,1965)

1.

Defendant Piggie Park Enterprises, Inc. is a Corporation 
duly organized and chartered under the laws of the State 
of South Carolina; and owns and/or operates and/or fran­
chises several restaurants in various communities in the 
said State. Said Defendant is not engaged in interstate 
commerce and operates under an announced policy of not 
catering to interstate travelers. Said Defendant has been 
denied Federal trade mark protection on the ground that 
it is not in interstate commerce, and is discharged from the 
responsibility of paying Federal minimum wages on the 
same ground.

2.

Defendant Bessinger believes as a matter of faith that 
racial intermixing or any contribution thereto contravenes 
the will of God. As applied to this Defendant, the instant 
action and the Act under which it is brought constitute 
State inference with the free practice of his religion which 
interference violates The First Amendment of the United 
State’s Constitution.

3.

The so called “ Civil Rights Act of 1964” under which this 
action is brought violates XIVth Amendment in that it 
seeks to deny Defendants equal protection of the law, seeks 
to deny them the full enjoyment and use of their property 
without due process, and seeks to abridge their privileges



10a

and immunities as citizens, in which instance it violates 
also Article IV, Section 2 of the United States Constitution. 
The said Act exceeds the power of Congress to regulate 
interstate commerce and thus is violative of the commerce 
clause in Article I, Section 8, of the United States Con­
stitution.

The Constitutional questions above are not precluded 
by prior decisions because of errors on the exercise of 
judicial power therein violative of the basic rights of all 
citizens as generally guaranteed by the United States Con­
stitution.

4.

The existence, inviolate, of the United States Consti­
tution, itself, and the form of law it guarantees are to­
gether the most basic rights enjoyed by citizens of the 
United States.

5.

Defendants deny Plaintiffs allegation that they were 
“ forced to file this action” .

6.

Defendants deny Plaintiffs allegation that they suffered 
and will continue to suffer from Defendants policy, practice, 
custom and usage, as set forth in the Complaint herein and 
demand strict proof thereof.

Answer

7.

Defendant Bessinger is an agent of Defendant Piggie 
Park Enterprises, Inc., with a duty to enforce the policies



11a

of said Corporate Defendant, but as said agent has no 
individual responsibility for the making of the policies.

W h e r e f o r e , Defendants respectfully pray that the Court 
will dismiss the alleged cause of action against them, indi­
vidually and/or severally.

5 February 1965

Answer



12a

First Amended Answer

(Filed: August 23,1965)

1.

Defendant Piggie Park Enterprises, Inc. is a Corporation 
duly organized and chartered under the laws of the State 
of South Carolina; and owns and/or operates and/or fran­
chises several restaurants in various communities within 
the said State. Said Defendant denies that it is engaged in 
interstate commerce, and asserts that it operates under an 
announced policy of not catering to interstate travelers. 
Said Defendant has been denied Federal trademark pro­
tection on the ground that it is not in interstate commerce, 
and has been discharged from the responsibility of paying 
Federal minimum wages on the same ground.

2.

Defendant Bessinger believes as a matter of faith that 
racial intermixing, or any contribution thereto, contravenes 
the will of God. As applied to this Defendant, therefore, 
the instant action and the Act under which it is brought 
constitute State interference with the free practice of re­
ligion which is violative of the United States Constitution 
(U.S. Const. Amend. Art I).

3.

The “ ‘Civil Rights’ Act of 1964” is generally violative of 
the United States Constitution, and specifically so in that 
it: (1) denies the Defendants the equal protection of the 
laws (US Const, Amend Art XIV, Sec 1; US Const Art IV,



13a

See. 1 ); (2) denies Defendants the full use and enjoyment 
of their property by taking a substantial portion thereof 
for alleged public use and benefit without due process and 
without just compensation (US Const, Amend Art XIV, 
Sec 1 ); (3) abridges Defendants privileges and immunities 
(US Const, Art IV, Sec. 2 ); and (4) exceeds the Congres­
sional power to regulate interstate commerce (US Const, 
Art I, Sec. 8).

Defendants urge that these questions are not precluded 
by prior decisions due to errors in the exercise of the 
judicial power therein violative of the basic rights as gen­
erally secured by the United States Constitution. The De­
fendants would further insist that certain of these questions 
are unique.

4.

The existence, inviolate, of the United States Constitu­
tion, itself, and the form of law it guarantees are together 
the most basic rights enjoyed by citizens of the United 
States of America (US Const, Amend Art IX ; US Const, 
Amend Art X ).

First Amended Answer

5.

Defendants deny the allegation that Plaintiffs were 
“ forced to file this action.”

6.
Defendants deny the allegation that Plaintiffs suffered 

and will continue to suffer from Defendants policy, prac­
tice, custom and usage, as set forth in the Complaint, 
and demand strict proof thereof.



14a

First Amended Answer 

7.

Defendant Bessinger is an agent of Defendant Piggie 
Park Enterprises, Inc., with a duty to enforce the policies 
of said Corporated Defendant, and has no individual re­
sponsibility for the making of the said policies.

W herefore, Defendants respectfully pray the Court to 
dismiss the alleged cause of action against them jointly 
and/or severally.

23, August 1965



15a

Motion to Amend

(Filed: March 19, 1966)

The Defendant moves the Court as follows:

1. To allow the Defendants to amend their Answer in 
the above-entitled matter and to incorporate therein al­
legations of denial that were overlooked heretofore in the 
pleadings filed on behalf of the said Defendants; that 
said amendments are set forth in a proposed Answer here­
unto appended as Exhibit A ; that the reasons that said 
Amended Answer is necessary are set forth in the Affidavit 
of counsel hereunto appended as Exhibit B.

2. That this Motion is based upon the provisions of 
Rule 15, Sub-Section (a), Federal Rules of Civil Procedure 
and said Motion is made in the interest of justice in that 
counsel has heretofore failed to properly deny certain 
matters in the Complaint, which matters should have been 
denied and that certain other defenses available to the 
Defendants have not been adequately set forth in the plead­
ings; that this Motion is further based upon an Order of 
this honorable Court heretofore filed on February 24th, 
1966.

3. That should this Motion be allowed, the Defendants in 
this matter will be ready for trial on April 4th, 1966, 
and that the granting of this Motion will not effect a delay 
in the trial of this case.

4. That the Defendants herein further move the Court 
to allow the Defendants herein to correct the answers 
given in Interrogatories 10 and 11 for the reason that



16a

Motion to Amend

proper inquiry was not made by previous counsel as to 
the information requested by the Plaintiffs in said Inter­
rogatories; that the substance of this Motion is that this 
matter was not heretofore adequately prepared and Defen­
dants should be fully allowed their day in Court.



17a

Affidavit in Support of Motion to Amend

(Filed: March 19,1966)

Samuel B. B ay, Jr., being duly sworn deposes and states:

That he is attorney for the Defendants herein; that he 
was retained after an Order of this Court relieving counsel, 
and that he entered this case as of March 7, 1966.

That after carefully reviewing the pleadings heretofore 
filed on behalf of the Defendants and after reviewing the 
facts as well as pertinent statutes and court decisions rela­
tive to the instant action, the undersigned is of the opinion 
that the pleadings filed on behalf of the Defendants are 
wholly inadequate to fairly and fully present the defenses 
available to the Defendants.

That pursuant to the provisions of Buie 15, subsection 
(a), Federal Buies of Civil Procedure, in the interests of 
justice, counsel urges the Court to permit Defendants to 
file an amended Answer setting forth such defenses as may 
be available and to place the Defendants in such a position 
as may allow them to remain in Court until all pertinent 
evidence may be heard.

That counsel hereby agrees to be ready for trial on April 
4th, 1966, as heretofore set by this Court even though an 
amendment is allowed, and that this Affidavit is purely in 
the interest of justice to the Defendants and not for the 
purpose of delay in the determination of this action.

W herefore, counsel prays that the Defendants be granted 
leave of this Court to amend their Answer and an Amended 
Answer heretofore filed herein upon such conditions as the 
Court may deem equitable.



18a

(Filed: March 30,1966)

For a First Defense

The Defendants admit the jurisdiction of this Court under 
the provisions of Title 2 of the Act known as the “ Civil 
Rights Act of 1964,” and Defendants deny the remaining 
allegations of Paragraph One of the Complaint; Defendants 
allege that they are without knowledge or information suffi­
cient to form a belief as to the truth contained in Para­
graphs Two and Four of the Complaint ; Defendants admit 
so much of Paragraph Five thereof as alleges “ Defendant 
Piggie Park Enterprises, Inc. is a corporation duly or­
ganized and chartered under the laws of the State of South 
Carolina. Said defendant owns and/or operates several 
restaurants in various communities in the State of South 
Carolina, two or more of which are located in the City of 
Columbia. Defendant L. Maurice Bessinger is the Presi­
dent of said corporation and is general manager of the 
various restaurants operated by the corporate defendant” ; 
Defendants deny each and every other allegation contained 
in said Complaint.

For a Second Defense

The Defendants allege that they are not engaged in inter­
state commerce, nor does their operation affect commerce 
within the meaning and definition of Title 2 of the Act 
known as the “ Civil Rights Act of 1964” ; Defendants fur­
ther allege that they are not within Federal control or 
regulation under the Commerce Clause, Article 1, Section 
8, Clause 3 of the Constitution of the United States, that

Second Amended Answer



19a

in this connection, the Defendants have been denied Federal 
trademark protection on the ground that Defendants are 
not in interstate commerce, and Defendants have been dis­
charged from the responsibility of paying Federal mini­
mum wages upon the same ground.

For a Third Defense

The Defendants allege that Piggie Park Enterprises, 
Inc., is not a place of public accommodation under Title 2 
of the Act known as the “ Civil Rights Act of 1964” provid­
ing for injunctive relief against discrimination in places of 
public accommodation, in that (a) the Defendants’ opera­
tion and business does not affect commerce, nor (b) does a 
substantial portion of the food which it serves or other 
products which it sells move in commerce, nor (c) do De­
fendants serve or offer to serve interstate travelers, nor 
(d) are the Defendants herein in commerce within the mean­
ing and purview of Title 2 of the “ Civil Rights Act of 
1964” ; the Defendants further allege that for the Defen­
dants to be found affecting commerce it would be necessary 
to find that the Plaintiffs herein and others similarly situ­
ated would go without food as a result of a failure of the 
Defendants to serve or provide food for said Plaintiffs.

For a Fourth Defense

1. That Title 2 of the Act known as the “ Civil Rights 
Act of 1964” violates the Defendants’ rights under the Con­
stitution of the United States in that (1) denies the Defen­
dants the equal protection of the laws under Amendment 
Article 14, Section 1, thereof and under Article 4, Section 1,

Second Amended Answer



20a

thereof; (2) denies the Defendants the full use and enjoy­
ment of their property by taking a substantial portion 
thereof for public use and benefit without due process of 
law and without just compensation under Amendment Arti­
cle 14, Section 1, thereof; (3) abridges Defendants’ priv- 
leges and immunities under Article 4, Section 2; and (4) 
exceeds Congressional power to regulate interstate com­
merce under Article 1, Section 8, thereof.

2. The Constitutional question herein is not precluded by 
prior decisions because of errors in the exercise of power 
of judicial power therein violative of the basic rights of all 
citizens guaranteed by the Constitution of the United 
States, that as to the Defendants in this action the Con­
stitutional questions raised are unique.

For a Fifth Defense

1. That Title 2 of the “ Civil Rights Act of 1964” under 
which this action is brought violates the Defendants’ rights 
under the 13th Amendment of the Constitution of the 
United States and would impose a type of slavery or invol­
untary servitude upon the Defendants, their servants, 
agents or employees, in violation of their rights under 
said Amendment.

2. The Constitutional question herein is not precluded 
by prior decisions because of errors in the exercise of 
power of judicial power therein violative of the basic rights 
of all citizens guaranteed by the Constitution of the United 
States, that as to the Defendants in this action the Con­
stitutional questions raised are unique.

Second Amended Answer



21a

Second Amended Answer 

For a Sixth Defense

That the Title 2 of the “ Civil Rights Act of 1964” under 
which this action is brought violates the Defendants’ rights 
under the 1st Amendment to the Constitution of the United 
States in that Defendant Bessinger believes as a matter of 
religious faith that racial intermixing or any contribution 
thereto contravenes the will of God; that as applied to this 
Defendant, the instant action and the Act under Avhich it 
is brought constitutes Congressional interference with the 
prohibition against interference of the free exercise of the 
Defendant’s religion.

W h e r e f o r e , Defendants respectfully pray the Court to 
dismiss the alleged cause of action against them jointly 
and/or severally.

March 18,1966



22a

Transcript of Trial, April 4, 5, 1966

The Court: All right, gentlemen, calling for trial AC- 
1G05, Anne P. Newman et al, vs. Piggie Park Enterprises, 
Inc., et al as Defendants. Mr. Perry representing the 
Plaintiffs, are you ready?

—3—
Mr. Perry: Plaintiff is ready.
The Court: Mr. Ray, what about Defendants?
Mr. Ray: We are ready, if your Honor please, before 

the trial commences one little thing—in drafting the 
pleadings, and I discussed this with Mr. Perry we alleged 
the denial of equal protection under law and denial of due 
process under the Fourteenth Amendment of the Constitu­
tion, which should have read the Fifth Amendment of the 
Constitution. If we could make that change, I ’d appreciate 
it, sir.

The Court: Is that in your Amended Answer?
Air. Ray: Yes, sir. It was in my Amended Answer.
The Court: What part?
Mr. Ray: The Fourth Defense, it has to do with the 

due process and equal protection, should have been the 
Fifth Amendment instead of the Fourteenth Amendment. 
Mr. Perry said that he had no objection.

The Court: Is that in the first or second paragraph?
Mr. Ray: It is in the first paragraph, sir, of the Fourth 

Defense.
The Court: What line?
Mr. Ray: It would be the 3rd line, 4th line, and 5th line. 

They all pertain to the same thing there.

— 2—



23a

Opening Statements

The Court: Where you have the Fourteenth Amend­
ment, you want to amend that to the Fifth Amendment?

Mr. Ray: Yes, sir, and both instances there where I 
have the Fourteenth, it should have been the Fifth 
Amendment.

The Court: Any objection to that, Mr. Perry?
Mr. Perry: No objection, your Honor.
The Court: All right. The Fourth Defense in the 

Answer will be amended accordingly. All right, gentle­
men, let’s proceed.

Mr. Perry: What is his Honor’s pleasure with reference 
to the reading of the Pleadings?

The Court: Well I don’t care to have them read. If you 
wish to make a brief statement, brief opening statement, 
I will be glad to hear from you, and I will be glad to hear 
what your position is; then I will give defense counsel a 
like opportunity before we get into the testimony.

Mr. Perry: Thank you, your Honor. Well, of course, 
your Honor I am sure is familiar with the pleadings, and 
the issues therein framed in this case. The Plaintiffs 
allege that on the dates alleged in the Complaint the Plain­
tiffs, all of whom are Negroes, sought service at one or 
more of the establishments operated by the defendants,

—5—
and they were refused such service because they are 
Negroes. Action here is bought for an injunction pro­
hibiting such discriminatory operation of the defendants’ 
businesses under Title II of the Civil Rights Law of 19G4; 
and essentially, that is our position. The plaintiffs also are 
seeking their costs in this proceeding, including reasonable 
fees for their attorneys.

- 4 —



24a

The Court: Is it your position that the defendants are 
in violation of Title II of the Civil Eights Act of 1964?

Mr. Perry: That is our position, your Honor.
The Court: Very well.
Mr. Ray: If your Honor please, we submit that the 

defendants, and by our Answer, that they are not in 
violation of Title II of the Civil Rights Act of 1964. In 
addition, and jurisdictionally, the plaintiff had alleged 
several other Federal Statutes for jurisdiction, we don’t 
see they are pertinent and the matter strictly arises from 
Title II of the Civil Rights Act, more particularly Sections 
201 and the folloAving sections in the Public Accommoda­
tions Section. We deny that we principally are engaged 
in selling food for consumption on the premises. We deny 
that we sell a substantial amount of food that is moved in

—6—
commerce within the meaning of the Act, and we raise a 
Constitutional question concerning due process of law in­
sofar as the proposed Act would take property of the 
defendants without due process, as well as the Act is arbi­
trary, vague, indefinite and capricious insofar as this de­
fendant, and others similarly situated under Section 201 
b(2), and (c)—

The Court: Hadn’t that question already been decided 
by the United States Supreme Court?

Mr. Ray: No, sir.
The Court: How about the Heart-of-Atlanta Motel case?
Mr. Ray: Pertaining to this, no, sir. That was a motel 

and serving transients. We deny we are serving, or offer 
to serve interstate travelers. We cut out that portion.

Opening Statements



25a

The Court: You deny that Piggie Park deals in inter­
state terminals?

Mr. Ray: Yes, sir. We have evidence on that, if your 
Honor please.

The Court: Well, of course, I am going to give you an 
opportunity, but I am a little surprised that you deny that.

Mr. Ray: Yes, sir, we do, if your Honor please.
The Court: All right.

—7—
Mr. Ray: And that we do not come within the meaning 

of the Act. Of course, I have stepped on to the fact that 
the Act itself denies the defendant due process, and that 
it is vague, arbitrary, and capricious insofar as the people 
that come under it, and don’t come under it. It is con­
ceivable after the only decision that has come down, and 
established law, that certain restaurants or places that 
are attempted to be covered could come without the Act, 
and there is no standard by which a man could go about 
setting up or determining when he comes under the Act, 
and when he doesn’t come under the Act, but it would 
depend, of course, upon the judicial decision in any one 
of the Fifty District Courts of the land, on any given date, 
and we claim there is a denial of due process of law because 
of the arbitrariness and precedent for striking down 
statutes that are so arbitrary in all of the decisions along 
the due process line. Our further position is that it im­
posed servitudes upon the defendants in violation of the 
Thirteenth Amendment, and finally that it is an imposition 
upon the freedom of the expression of religion of Mr. 
Bessinger, as a citizen.

Opening Statements



26a

Mr. Perry: Shall we proceed with the presentation of 
our evidence, your Honor?

The Court: Yes, sir.
Mr. Perry: Thank you, your Honor. Mr. Jenkins.
Mr. Jenkins: We call as our first witness Miss Sharon 

Neal.

Sharon Neal—for Plaintiffs—Direct

Sharon N eal, called as a witness in behalf of the Plain­
tiffs, who being first duly sworn, testified as follows:

Direct Examination by Mr. Jenkins:

Q. Miss Neal, what is your middle initial? A. W.
Q. So you are Miss Sharon W. Neal? A. Yes.
Q. Are you one of the Plaintiffs in this action? A. Yes. 
Q. Miss Neal, are you a member of the Negro race? A. 

Yes I am.
Q. Do you recall that sometime during the month of 

August of 1964 you had occasion to visit one of the estab­
lishments owned by the defendant, that is to say Piggie 
Park Restaurant? A. Yes.

Q. Do you recall what day it was ? A. It was in August 
of 1964, I don’t remember the date.

—9—
Q. August 12, 1964, is that correct? A. Yes.
Q. Do you recall the approximate time of day? A. I 

am not sure. I believe it was around 2 :00 o’clock, I am not 
sure.

Q. It was in the afternoon? A. Yes.
Q. Do you recall what particular establishment you 

visited? A. It was the Piggie Park.



27a

Q. There are several Piggie Park establishments, do you 
know that? A. Yes.

Q. Which one did you visit on that day? A. I don’t re­
member. It was, I believe, on Two Knots Road.

Q. And does the Summerton Highway mean anything to 
you? A. Yes.

Q. Is it not a fact that you visited the Piggie Park estab­
lishment that is located on the Summerton Highway? A. 
Yes.

Q. Is that in or near the City of Columbia, South Caro­
lina? A. Yes it is.

— 10—

Q. Do you know that was called Summerton Highway is 
U. S. Highway No. 78 and U. S. Highway No. 378?

Mr. Ray: If your Honor please, I would like to 
object to counsel testifying and asking for a yes or 
no answer.

The Court: Mr. Jenkins, this is your witness. I 
ask you not to propound leading questions that indi­
cate the answer.

Q. Miss Neal, were there other persons accompanying 
you on this occasion? A. Yes.

Mr. Ray: If your Honor please, she said nothing 
about other persons, and he’s still testifying.

The Court: He is asking if other persons were 
with her. I think that is a proper question.

Sharon Neal—for Plaintiffs—Direct

A. Yes there were.



28a

Q. Do you know the names of those persons? A. Yes, 
sir, I do.

Q. Would you state their names? A. Mr. Bernard 
Moore, and Mrs. I. D. Newman.

Q. I. D. Newman? A. Yes.
Q. Is Mrs. Newman one of the plaintiffs also? A. Yes 

she is.
Q. How did you arrive at this Piggie Park establish-

— 11—

ment? A. We went there to get something to eat.
Q. What was your mode of travel? A. We were in a car. 
Q. A car? A. Yes.
Q. Do you recall the seating arrangements of the per­

sons in the car? A. Yes I do.
Q. Who was driving the car? A. Mrs. Anne Newman 

was driving.
Q. Where were you seated? A. I was seated in the back, 

to the right of the car.
Q. Where was Mr. Moore seated? A. In the front seat. 
Q. Now, did you drive on to the premises of the Piggie 

Park? A. Yes we did.
Q. Do you recall anything that happened there which 

attracted your attention? A. Yes. We noticed commo­
tion in the kitchen among the people when they saw us 
come in.

Q. Would you care to elaborate on that please? A. A 
person came out and she saw us outside. They went back

- 12-

in and told the other people we were out there.

Mr. Ray: If your Honor please—
The Court: Did you hear her tell the other people?

Sharon Neal—for Plaintiffs—Direct



29a

Sharon Neal—for Plaintiffs—Direct 

A. No I didn’t.

The Court: Well you can only testify to what 
you know; not what you surmise or guess.

Q. After this person came out, saw you, went back into 
the establishment, was a conversation between this person 
and some other persons? A. Yes there was.

Q. You didn’t hear what was said? A. No I didn’t.
Q. Now, what portion of the establishment did this per­

son come out? A. It was, I am not sure I believe it was the 
side to the left of where I was facing.

Q. Would it be, was it from the main dining room, or 
from some other part of the establishment? A. No, I 
think it was the kitchen.

Q. Was this person dressed in any uniform, or any 
peculiar manner of attire? A. No.

Q. Just ordinary attire? A. Yes.
—13—

Q. Could you determine whether this person was an 
employee of the defendant? A. No I couldn’t.

Q. You couldn’t tell? A. No.
Q. Your testimony, I believe, has been that persons in 

the restaurant came and watched you persons who were 
in the car? A. Yes they did.

Mr. Ray: I can’t see any relevancy to that, that 
people watched them.

The Court: Well, let’s go ahead, this is a non 
jury case, and we don’t have to be too particular 
what comes in and what doesn’t.



30a

Q. Could you determine whether these persons were 
employees of the defendant? A. Yes they were.

Q. They were employees? A. Yes.
Q. Did any employee of this establishment ever come 

out to the car where you were seated? A. Yes.
Q. Will you state what occurred thereafter ? A. Well the 

waitress came out to take our order. "When she came near 
the car, she turned around and went back inside.

— 14—

Q. Did she take an order? A. No she didn’t.
Q. Did you offer to make a purchase? A. Yes we tried.
Q. Thereafter did anything else happen? A. Yes. A 

man came out later and he came over to the window as if 
to take an order, but he didn’t. I mean to the car, he had 
a conversation with Mr. Moore.

Q. Could you tell whether this person was an employee 
of defendant? A. Yes he was.

Q. He was? A. Yes he was.
Q. Why do you say he came as though— ? A. He had 

the ordering pad in his hand and a pencil and everything 
as if to come take one.

Q. There was a conversation you say? A. Yes.
Q. Between this employee of the defendant and Mr. 

Moore? A. Yes.
Q. Now, during that conversation, did anybody in the 

car attempt to place an order? A. Mr. Moore did.
— 15—

Q. Did you over hear the conversation? A. Yes I did.
Q. Can you recall what was said generally? A. Yes.
Q. State what was said. A. Mr. Moore went ahead to 

place an order. We gave our order to Mr. Moore, he went

Sharon Neal—for Plaintiffs—Direct



31a

to place it and the fellow that came to the car refused us. 
He didn’t say why, and Mr. Moore tried to get him to say 
why he refused us, but he wouldn’t.

Q. He never gave any reason why he did not take your 
order? A. No.

Q. Did the person ever, this employee, ever state that 
he would take your order? A. No he didn’t.

Q. Was there any other conversation between anybody 
in the car and this employee? A. No.

Q. Did anyone else then come out? A. No, not after 
that, no.

Q. Were you orderly in your bearing, well-behaved? A. 
Yes.

Q. There was no argument—was there any argument? 
A. No, there was no argument.

— 16—

Q. Was there any disturbance at all? A. No.
Q. Was any reason given for you not being served? A. 

No there wasn’t.
Q. Were you ever served on that occasion? A. No.
Q. Miss Neal, were there other cars parked in this area 

when you drove up? A. Yes. Approximately three.
Q. Three cars? A. Yes.
Q. Did you observe the persons in those cars? A. Yes 

we did.
Q. Do you recall whether those persons had been served? 

A. Yes, they were eating at that time.

Mr. R ay: If your Honor please, I don’t see where 
that would be relevant at all.

The Court: Well I will let it come in, go ahead.

Sharon Neal—for Plaintiffs—Direct



32a

Q. You say they were eating? A. Yes they were.
Q. They were on the premises of the defendant? A. 

Yes.
Q. Did you observe the race of these people? A. Yes.

— 17—
Q. Were any of them Negro? A. No they were not. 

Mr. Jenkins: Your witness.

Cross Examination by Mr. Ray:

Q. Miss Neal, have you ever been to the Piggie Park 
Enterprises since this time in August? A. No I haven’t.

Q. Prior to August, 1964, had you ever been in Piggie 
Park Enterprises? A. No.

Q. Any establishment of Piggie Park Enterprises? A. 
No.

Q. You are sure of this? A. Yes I am.
Q. Have you ever been refused service at any other 

restaurants in Columbia? A. Yes I have.
Q. Any other places of business? A. Yes.
Q. At any of those places of business did anyone tell 

you why they were not going to serve you? A. Yes they 
did.

Q. They did not tell you? A. They did.
— 18—

Q. They did not tell you this at Piggie Park? A. No 
they didn’t.

Q. Do you live in Columbia? A. Yes, now I do, yes.
Q. Did you live in Columbia at that time? A. Yes I was 

living there.
Q. Do you eat out at restaurants very often? A. Not 

very often; I do sometimes.

Sharon Neal—for Plaintiffs—Cross



33a

Q. On this particular day, you have remembered what 
you did, what did you do after you left Piggie Park?

Mr. Jenkins: Your Honor, at this point we see 
no connection between the line of questioning and 
the matters before the court.

The Court: Well, as I told Mr. Ray in the begin­
ning, this is a non jury case, not a jury case, and 
I am not going to adhere strictly to the rules of evi­
dence, and rules of relevancy. A good many matters 
will be brought out that probably won’t be relevant, 
but it is left up to the court to determine what is and 
what is not.

Q. What did you do? A. I returned to school.
Q. To school? A. Yes.

— 19—
Q. Where did you go to school? A. Benedict College.
Q. Benedict College. Did you, on this particular day, did 

you eat dinner that day? A. Yes I did.
Q. And what time did you eat dinner this day? A. I 

believe it was around 4 :00 o’clock. I am not sure.
Q. What time did you eat breakfast?

The Court: Mr. Ray, I let you go into this, but 
I mean I just don’t see any point in following this 
to its illogical conclusion, unless you can point out 
to me what the relevancy of it is.

Mr. Ray: That is all right, sir.

Sharon Neal—for Plaintiffs—Cross



34a

Q. But at no time, Miss Neal, did anyone tell you that, 
at Piggie Park, did anyone tell you you were being refused 
food because you were a Negro? A. No they didn’t.

Q. Was it said to anyone in that automobile? A. No.

The Court: Is that all, Mr. Ray?
Mr. Ray: Yes, sir.

Redirect Examination by Mr. Jenkins:

Q. Miss Neal, did you testify in answer to a question by
—2 0 -

counsel, you are a student? A. Yes.
Q. Now where is your native home? A. New York City. 
Q. Why are you in Columbia? A. I am attending col­

lege there.
Q. Is that your reason for being in Columbia? A. Yes. 
Q. Are you living in Columbia temporarily then while 

in school? A. Yes I am.
Q. Is it your intent to return to the State of New York 

after you complete your training? A. Yes.

Mr. Jenkins: That is all.
The Court: All right. Step down.
Mr. Perry: Mr. Price.

Sharon Neal—for Plaintiffs■—Redirect



35a

L eonard L. Price, called as a witness in behalf of the 
plaintiffs, who being first duly sworn, testified as follows:

Direct Examination by Mr. Perry.

Q. Would you state your name and address, please! A. 
I am Leonard Price, Columbia, South Carolina, president 
of Germany Roy Brown Company, 911 Washington St.

—21—
Q. Mr. Price, what is the nature of the business of 

Germany-Roy-Brown and Company! A. We are in the 
wholesale beer business.

Q. Would you tell use please what products your com­
pany distributes! A. We sell Budweiser, Bavarian, and 
Michelob.

Q. Can you tell us, Mr. Price, whether your company 
sells beer, or other supplies, to the Piggie Park Enter­
prises of which Mr. L. Maurice Bessinger is president! A. 
We did. Of course today he does not have a beer license, 
and we don’t sell him now.

Q. When is the last time your company sold beer to Mr. 
Bessinger’s enterprises! A. About mid 1964 I believe. 
I don’t have the exact time.

Q. About mid 1964! A. Yes.
Q. All right, then. Can you tell us please whether— 

you say about mid 1964, do you have any recollection 
whether you have sold Mr. Bessinger’s enterprises any 
beer products since July 2, 1964! A. I couldn’t specifi­
cally state that we have. He bought a new beer license, 
I believe in 1964 at the beginning, which was July 1, and 
we sold him until he decided to discontinue beer.

*  •  *  •  *

Leonard L. Price—for Plaintiffs—Direct

#  #  ** #

—110—



36a

S haron M iles, called as a witness in behalf of the Plain­
tiffs, who being first duly sworn, testified as follows:

Direct Examination hy Mr. Pride:

Q. Please state your full name and address? A. Sharon 
A. Miles, Columbia, South Carolina.

Q. How long have you lived in Columbia, South Carolina ? 
A. Year and a half.

Q. And prior to that where did you live? A. Blooming­
ton, Indiana.

Q. Are you a permanent resident of South Carolina? 
A. No I am not.

Q. Where are you planning on residing? A. Washing­
ton, D. C.

Q. Washington, D. C. Have you ever had occasion to 
enter one of Piggie Park stores owned by Mr. Bessinger in 
Columbia? A. Yes, I have, last Saturday.

—Ill—
Q. Last Saturday? A. Yes, sir.
Q. I believe that would be the second of April, is that 

correct? A. That is correct.
Q. About what time was that? A. Around 1:00 o’clock 

in the afternoon.
Q. Could you tell us exactly where that establishment was 

located? A. On Main Street in Columbia.
Q. On Main Street. Would you describe the inside of the 

establishment? A. Yes. There is a line to the left of the 
building where the food is distributed, and along the right 
as you enter on the righthand wall there are tables at which 
you are seated.

Sharon Miles—for Plaintiffs—Direct



37a

Q. In terms of whether it a restaurant or cafeteria style, 
which one is it? A. Cafeteria.

Q. Cafeteria style. Were you greeted at the door by any 
of his employees? A. No I was not.

Q. Tell us, did you just go in and take a seat? A. I went 
in, stood up and got my food, then I went to my table and 
sat down.

— 112—

Q. Did anybody inquire of you where you were from? 
A. No they did not.

Q. Did anybody make any demands upon you? A. No 
they didn’t.

Q. Of presenting any type identification or anything? 
A. No, none.

Q. So no one knew where you were from while you were 
in there? A. That is correct.

Q. What did you order? A. Sandwich and a cup of 
coffee.

Q. Did you see any other Negroes in there? A. No I 
did not.

Q. They were all white? A. Yes, as far as I could tell.
Q. Did you have occasion to observe any of the products 

that were being sold in there? A. Well besides there was 
the food displayed as they were preparing it along the table 
that we were getting our food, and there were a few large 
cans of food underneath one of the tables to the left.

Q. Do you know what type of food that was? A. I am 
sorry I don’t remember.

Q. Could you see where any town or state was marked

on it? A. I don’t remember specifically.
You don’t remember? A. No.

Sharon Miles—for Plaintiffs—Direct

— 113—



38a

Mr. Pride: Would you induge me just a moment, 
your Honor.

Q. When you got ready to leave, did anybody make any 
demands on you, or ask you any question as to where you 
were from? A. No they did not.

Q. Do you know the general policy of the proprietor or 
Mr. Bessinger in that particular place? A. Yes I do.

Q. Do you know it in regard to race? A. Yes I do.
Q. Would you tell us please? A. Yes. There is a sign 

on the restaurant that I went into in Columbia which I be­
lieve said we cater to white trade only.

Mr. Pride: Answer any questions Mr. Ray may 
ask you please.

Cross Examination by Mr. Ray:

Q. Where do you live? A. I live in Columbia.
— 114—

Q. How long have you been there? A. About a year and 
a half.

Q. About a year and a half. What do you do there? A. 
I am a housewife.

Q. Does your husband live there? A. Yes he does.
Q. Does he work there? A. Yes he does.
Q. Before you entered this place of business—you are 

Mrs. Miles? A. Yes.
Q. Where is your husband from? A. Originally?
Q. Yes. A. From Little Rock, Arkansas.
Q. From Little Rock, Arkansas? A. Yes.
Q. Are you a college graduate? A. Yes I am.

Sharon Miles—for Plaintiffs—Cross



39a

Q. What school did you go to? A. University of Cali­
fornia.

Q. And how old are you? A. I am twenty-six.
Q. Twenty-six, and your husband a college graduate? 

A. Yes he is.
—115—

Q. Where did he go to school? A. University of Cali­
fornia, A.B. Degree; and a Master’s Degree from Indiana 
University.

Q. What does he do? A. He is director of the South 
Carolina Voter Education Project.

The Court: What is his position?

A. Director.

The Court: Of what?

A. South Carolina Voter Education Project.
Q. Who sponsors the South Carolina Voters Education 

Project? A. It is an independent organization.
Q. I beg your pardon? A. Independent.
Q. By independent, what do you mean? A. Well I mean 

they are self-supporting.
Q. Well when you went into the Piggie Park place on 

Main Street, did you look in the window? A. No I did not. 
Q. As you went in? A. No I did not.
Q. Then how did you see a sign there that said we cater 

to white trade only? A. I passed the Piggie Park many 
times. I have noticed the sign before.

— 116—
Q. Is that the Piggie Park you went in? A. Yes I be­

lieve it was.

Sharon Miles—for Plaintiffs—Cross



40a

Q. Right there (exhibiting photograph)? A. Yes.
Q. Is that a reasonable representation of the front of it 

at the time you went on Saturday? A. I don’t remember 
this sign right here. As far as I can, otherwise it is.

Q. What is your husband’s name? A. Richard Miles.
Q. Richard Miles, and do you classify yourself as a Ne­

gro or white person ? A. I am Caucasian.
Q. Caucasian, and your husband? A. He is Caucasian.
Q. And you lived in Columbia, South Carolina, for a year 

and a half? A. That is correct.
Q. What is your address there? A. 1208 Hardin Street.
Q. When you walked into this place, did you speak to 

anyone? A. I did not except to the woman who took my 
order.

Q. That took your order. A. Yes, sir.
— 117—

Q. Well you said just now this place was cafeteria style. 
A. Yes.

Q. And when you move, do you pick up your food as you 
move down the line? A. I ordered from her. She pre­
pared my food, then I moved down the line and someone 
gave me my cup of coffee.

Q. How was the food laid out, they cook— ? A. She 
prepared the sandwich in front of me along the counter 
right below where the tray is.

Q. How did she prepare it, what did you order? A. A 
sandwich.

Q. What kind? A. A  barbecue.
Q. A barbecue sandwich? A. Yes.
Q. And was it sliced barbecue or chipped barbecue? A. 

I believe it was chipped.

Sharon Miles—for Plaintiffs—Cross



41a

Q. And it was put on bread or buns? A. On a bun, yes.
Q. And then after that was done, what did the person 

that waited on you do with the food? A. She handed it to 
me.

Q. Did she hand it to you with her hand? A. As I re­
member she handed it to me on a plate.

—118—
Q. What kind of plate? A. I am sorry, I don’t 

remember.
Q. Was it a paper plate or China plate? A. I don’t re­

member. I think it was a paper plate because I think I 
remember depositing it in a trash basket.

Q. And was it just a small plate or paper tray kind of 
affair? A. I think it was a small plate.

The Court: I had a tray.

Q. And how many people were in the place when you 
went in at 1:00 o’clock about? A. There were about six 
or eight other people, I think.

Q. Was there a steady stream of people coming through 
there or just a few? A. When I came in there was a small 
line, but after a while it sort of trickled off. There was not 
a large number of people at the time I ate.

Q. Most of the people that were in there, did they sit 
down to eat? A. As I remember all of them did. I don’t 
remember anyone just taking an order and going out.

Q. Was there any wax paper around your sandwich 
when she handed it to you? A. I don’t believe there was, 
but I am sorry I don’t remember exactly.

Sharon Miles—for Plaintiffs—Cross



42a

Sharon Miles—for Plaintiffs—Cross

—119—
Q. Wliat type of spoon were you served with your cof­

fee? A. I was not served a spoon.
Q. Did you obtain one? A. No I did not.
Q. You drank your coffee black? A. That’s right.
Q. Your coffee was in a glass cup? A. I believe it was 

a China cup, I am sorry I can’t remember.
Q. You don’t really know. You say it is your testimony 

you lived in Columbia for a year and a half? A. Yes, sir, 
that is correct.

Q. And how did you happen to go down to Piggie Park 
this past Saturday, is that your usual place of eating? A. 
No it is not. This is the first time I been in the cafeteria. 
I have eaten at Piggie Park other places.

Q. Piggie Park other places, you mean in Columbia? A. 
No, I have eaten in Piggie Park in Orangeburg.

Q. And you never been at 1430 Main Street, Piggie Park 
there before until last Saturday? A. That is correct.

Q. And why did you go there? A. My husband asked 
me to go there.

— 120—

Q. Your husband? A. Yes.
Q. Asked you to go there? A. Yes.
Q. Did you ask him why? A. Yes I did.

Mr. Perry: Your Honor, may I submit that the 
reason the witness went to the defendant’s place of 
business is without relevance.

The Court: Will you let him finish?
Mr. Ray: But he’s fixing to testify why she went 

there.



43a

The Court: I will let him finish.
Mr. Perry: May I submit the reasons behind the 

witness’s going to the place of business are without 
relevancy and can serve no useful purpose to these 
proceedings. That is the basis.

The Court: You object to this line of
questioning1?

Mr. Perry: I do.
The Court: All right, Mr. Ray. I will hear from 

you now.
Mr. Ray: I have nothing further to ask the 

witness.
The Court: Well what is the relevancy of this

- 121-

line of questioning?
Mr. R ay: I was actually testing what her motives 

and everything else was in going there, your Honor. 
They have alleged—I am trying to find out the rele­
vancy of why she went there. I assumed that he 
intends to prove by her going there that this was 
an interstate traveler I guess. I really don’t know, 
but I was trying to find out. And in addition to 
that, she remembered quite a bit of things that I 
was trying to find out how much more she remem­
bered. She didn’t remember but one sign in the 
window, and there was another one there right with 
it just as big or bigger than that was.

The Court: Do you have any more questions?
Mr. Ray: No, sir. I think that is plenty.
Mr. Pride: You may come down.
Mr. Perry: Plaintiffs rest, your Honor.

Sharon Miles—for Plaintiffs—Cross



44a

The Court: All right.
Mr. Ray: May I have just a few minutes, your 

Honor, I will appreciate it.

(The hearing recessed briefly and reconvened.)

The Court: All right, Mr. Ray.
Mr. R ay: If your Honor please, for the record we 

would like to move to dismiss the Complaint of the 
Plaintiffs, first that this was apparently a class 
action. There is no evidence whatever to indicate

— 122—

that Mr. Bessinger’s employees, whoever they might 
have been at that particular time, refused to serve 
the only person that has testified Sharon Neal be­
cause of race.

The Court: Well that is the testimony here that 
posted signs on the premises say that they only 
cater to white.

Mr. R ay: That is at one of the businesses, if your 
Honor please. There are four. That is the down­
town business at 1430 Main Street.

The Court: Well you are saying there are not 
signs at the other places?

Mr. Ray: No, sir. I am not saying that, no, sir. 
There has been no, secondly, there has been no proof 
offered whatsoever that there has been any service 
or offer to serve interstate travelers. Now Mrs. 
Miles was put on the stand, and it developed she had 
been living in the State of South Carolina for a year 
and a half, and I don’t see how she could possibly 
come within the term interstate traveler by any 
stretch of the imagination.

Motion to Dismiss



45a

The Court: Well is it your position he doesn’t 
serve interstate travelers?

Mr. Eay: That’s right, sir.
The Court: What does he do to protect himself

—123—
from serving them?

Mr. Eay: Well if your Honor requires us to go—
The Court: I stopped on several occasions at 

the one on West Columbia and pushed the button 
where no one could see if I was in South Carolina 
license, no one asked me whether I was intra or 
interstate, whether I was a resident of South Caro­
lina or North Carolina.

Mr. E ay: That’s right, but we will have some evi­
dence on that.

The Court: I overrule your motion on that 
ground.

Mr. E ay: And thirdly that there has been no evi­
dence introduced to show that a substantial portion 
of the food that he serves has moved in commerce, 
food as distinguished from some other items, if your 
Honor please. There is nothing to measure that by 
that has been introduced.

The Court: What is your conception of the legal 
definition of substantial?

Mr. E ay: If your Honor please, that is one of the 
basis of one of our defenses that it is incapable at 
any given time of being the same thing.

The Court: That is a matter of factual determina­
tion of the Court after hearing the evidence. I have

Motion to Dismiss



46a

Motion to Dismiss

—124—
certainly heard enough evidence to make a prima 
facie showing there is a substantial amount of food 
products traveled in interstate commerce. The last 
witness alone, Mr. Wilkerson, testified they sold to 
the defendant in the year 1964 some forty thousand 
dollars worth of merchandise, in 1965 some thirty- 
two thousand dollars worth of merchandise, two- 
thirds of which would have traveled in interstate 
commerce they purchased from out of the state. 
That, to me, is a prima facie showing of a substan­
tial amount.

Mr. Ray: Depending on what you are measuring.
The Court: Of course $10 is a substantial amount 

as to say $15 to $25, but $10 may not be a substan­
tial amount as to $100,000. But I surely say that as 
of right now, there is a prima facie showing that the 
defendant is serving a substantial quantity of food­
stuffs that have moved in interstate commerce. That 
may be rebutted by your evidence, but I would say 
as of right now, that is a prima facie showing.

Mr. Ray: All right, sir.
The Court: Any other motions? Your motion 

based on any other ground? Motion to dismiss
— 125—

based on any other grounds?
Mr. R ay: I would like to base it— I think that will 

be all. Call the first witness Miss Merele Brigman.



47a

M erele Brigman, called as a witness in behalf of the 
Defendants, who being first duly sworn, testified as follows:

The Court: Let the record show I overrule the 
motion on all grounds. We proceed to take the testi­
mony of Defendants.

Direct Examination by Mr. Ray :

Q. Your name is Mrs. Merele Brigman? A. Yes.
Q. Where do you live ? A. Columbia.
Q. And by whom are you employed? A. Piggie Park 

Enterprises.
Q. And what is your job, Mrs. Brigman? A. I am book­

keeper and buyer.
Q. And do you make all of the purchases for Piggie Park 

Enterprises? A. The majority, yes.
Q. Do you keep in your possession or in your custody 

all of the records pertaining to it? A. I do.
— 126—

Q. How long have you been working for Piggie Park 
Enterprises? A. Two years March 23.

Q. At my request have you examined the records for 
Piggie Park Enterprises back over the past couple of years? 
A. Yes, sir, I have.

Q. What basis does Piggie Park keep its books, on a 
calendar year basis or fiscal? A. Fiscal year, June 1st to 
May 31st.

Q. And have you had occasion to go over the food and 
related items purchased during the year, fiscal year 1963- 
64, ’64-65 and for the first six months of ’65-66? A. Yes,

Merele Brigman—for Defendants—Direct

sir.



48a

Q. And do you know, have you compiled those records? 
A. Yes, sir.

Q. And at whose request did you do this? A. Yours.
Q. For the fiscal year 1963-64, what were the total pur­

chases, what is that that you have in your hand? A. This 
is a photostatic copy of a chart I made totaling up the in­
voices of each supplier that we bought from.

Q. What are the total purchases for food and related
- 1 2 7 -

items by Piggie Park? A. From June 1st of 1963, through 
May 31 of ’64 we bought $240,565.58.

Q. All right, maam. 1964-65? A. We bought $222,- 
845.26.

Q. Is that correct, that last figure? A. Yes, sir. June 
1st, ’64 through May 31, ’65.

Q. And for the first six months of ’65-66? A. This is 
through December 12, 1966 we bought $122,724.13.

Q. You mean ’65 through December 12, 1965. A. No, sir, 
June 1st, 1965 through December 12, 1966. Oh, I ’m sorry, 
yes, sir. ’65. I ’m sorry.

Q. And did you tabulate those total purchases? A. Yes, 
sir.

Q. Have you had occasion to visit the various Piggie 
Park Enterprises? A. Yes, sir.

Q. I ’d like to ask you, Mrs. Brigman, if you recognize 
that picture? A. Yes, sir. That is Piggie Park on Two 
Knots Road, which is known as Piggie Park No. 3.

Q. How about this one, do you recognize it? A. Yes, 
sir. That is Piggie Park, Sumter Highway, which is Piggie 
Park No. 2.

Merele Brigman—for Defendants—Direct



49a

Merele Brigman—for Defendants—Direct

—128—
Q. That one? A. That is Little Joe Sandwich Shop, 

downtown Main Street.
Q. And this one? A. That is the Piggie Park on 

Charleston Highway, which is known as Piggie Park No. 1.

Mr. Perry: We have no objection.
The Court: Very well.
Mr. Kay: If your Honor please, I have four 

photographs I would like to introduce.
The Court: Defendants’ A, B, C, and D.

Q. Mrs. Brigman, are there any signs pertaining to in­
terstate travelers, or service to interstate travelers located 
on the premises of Piggie Park Enterprises? A. Yes, sir.

Q. And what do those signs say? A. We do not serve 
interstate travelers.

Q. Are they posted in the window? A. Yes, sir, they 
are in the window.

Q. And when were those signs put there, do you know? 
A. Not the exact date, no, sir, but it has been a couple of 
years.

Q. Thank you, maam. And do those signs appear on each 
of the photographs that I have here in my hand? A. Yes, 
sir.

Q. Have you made any effort to determine what per-
—129—

centage or percentages of the food purchased has been pur­
chased from suppliers without the state with reference to 
articles being ground, manufactured, or packed, processed 
within this state? A. You want within this state or out?



50a

Q. With reference to that, have you made any effort to 
determine what percentage of the food that is purchased— ? 
A. Yes, sir.

Q. And for the year 1964-63-64, what percentage was 
that? A. Food processed and/or manufactured in South 
Carolina?

Q. Yes maam. A. I came up with 75% of the total 
amount of money spent for foods.

Q. All right, maam. And how about 1964-65? A. The 
same thing.

Q. How about the first part of ’65-66? A. Well I came 
up with 82%.

Q. Is there any reason for the difference there? A. Yes, 
sir. We buy as much as possible of processed food in South 
Carolina, and every day I am searching for new suppliers 
that process their food in South Carolina.

Q. And/or grow it? A. Yes.
— 130—

Mr. Ray: I have no further questions.

Cross Examination by Mr. Jenkins :

Q. Mrs. Brigman, what effort is made by the Piggie 
Park Enterprises at the various establishments to deter­
mine whether a prospective purchaser is an interstate 
traveler? A. You mean a customer?

Q. Yes. A. I am sorry, would you repeat the question.
Q. Maybe I should elaborate a bit. You say these vari­

ous establishments have signs posted which say in effect 
we do not cater to interstate travelers, is that correct? A. 
Yes. We do not serve interstate travelers.

Merele Brigman—for Defendants—Cross



51a

Q. Now, my question is, what effort is made by the par­
ticular establishment to determine whether a person who 
offers to purchase is in fact an interstate traveler or not? 
A. The only way we have is by the car license.

Q. Car license? A. Yes, sir.
Q. Now explain what the procedure is when a car comes 

up with a customer. A. Well if a car comes up with a 
customer and we see that he is from out of state we tell 
them we do not serve interstate travelers.

Q. Do you know that as a fact? A. Yes, sir.
— 131—

Q. Do you visit the various establishments? A. Well 
my office is right next door to one on Sumter Highway.

Q. You observe every car that comes up? A. No, sir.
Q. Now, with reference to the three other establishments, 

how do you justify your statement? A. Well I am in 
charge of all of the records, and we write a ticket for each 
customer that comes up and orders over our intercom sys­
tem, and if the girl, the curb girl when she is out on the 
curb she sees these cars, and I have when these tickets 
come through the office we have tickets that are voided, and 
each ticket has to have a reason on the back, and it says 
that this was an out of state customer and therefore they 
voided the ticket and did not serve them.

Q. Now, do you know whether there may be out of state 
customers served and tickets not voided? A. Well, I don’t 
know, sir.

Q. So then this alleged check which you say you follow is 
not then an accurate measurement on what takes place is 
it? A. No, but those are the ones I know. You asked me

Merele Brigman—for Defendants—Cross



52a

how do I know for a fact; those are the ones I know for a
- 1 3 2 -

fact that are not served.
Q. Insofar as you know any particular day you may 

have ten tickets voided because of out of state license on 
the car ? A. That’s right.

Q. When in fact there may have been 200 persons served 
with out of state license? A. Well we may catch them be­
fore the ticket is written and rung up. If that is the case, 
we do not write a void ticket.

Q. My question is, is it quite possible under your system 
of check that 200 out of state cars, occupants, may in fact 
be served and you only void five out of state? A. Well 
no, sir. 200 is too many because we don’t have that many 
customers a day at one particular drive-in because we do 
have a count of our customers.

Q. That of course, the figure I used is taken out of the 
sky. All I am getting at is you really have no method. 
This method you now mention is not an accurate method 
of who may be served there? A. That’s right.

Q. That is correct, is it not. Every order that is placed 
in your establishment is indicated by a ticket? A. Yes.

Q. Those tickets come into your possession? A. Yes.
— 133—

Q. You have any of them with you? A. No, sir.
Q. You knew you were going to be a witness here today 

didn’t you? A. Yes.
Q. And you knew you would testify as a person who is in 

charge of records of the defendant corporation, is that not 
correct? A. Yes.

Merele Brigman—for Defendants—Cross



53a

Q. And you made no effort to bring with you these rec­
ords which you reasonably could have anticipated that you 
would ask for? A. Well, no.

Mr. Ray: If your Honor please, I don’t think that 
question is proper question. She wasn’t to anticipate 
every question that counsel would ask her.

Mr. Jenkins: I feel certainly—
Mr. Ray: It goes into conjecture. They have an 

established practice. They can’t go out and take the 
pedigree on everybody that comes on the lot. All 
they can do is make a reasonable effort, and I think 
they have done that.

The Court: Well that is for me to decide and not 
for you.

—134—
Mr. Ray: Yes, sir, I understand that.
The Court: I want to hear everything I can that 

assist me in making that determination. As I un­
derstood his question, he’s merely asking her whether 
or not she knew she was going to be a witness and 
she would in all probability be called upon to testify 
as to the practice of the defendant in what it did or 
did not do in reference to the service of interstate 
travelers.

Mr. Ray: Yes, sir. I didn’t mean to insult the 
Court.

The Court: I am going to let him go into that. 
That, as I understand, is one of the issues that must 
be determined by the Court in reference to this case.

Merele Brigman—for Defendants—Cross



54a

Mr. Ray: I didn’t mean to insult the Court. I 
merely thought I should interpose the objection at 
that time, and that I would have been amiss, as 
counsel, if I hadn’t done so.

The Court: All right.

Q. Mrs. Brigman, I believe you say you do not have those 
records? A. No I do not.

Q. Can you obtain those records? A. No I can not. I 
can for this week. We throw them away. Now I keep all

- 1 3 5 -
void tickets, but we only have carbon copy because the 
customer gets the original, and after we check them they 
are thrown away.

Q. You keep them only a week? A. That’s right.
Q. Yet you say you keep these void tickets. You care to 

tell us why you keep the void tickets? A. Well because 
on our register we have a running total of the sales and a 
void ticket is rung up and so therefore it is counted as a 
sale, and on my sales report I subtract these void tickets 
so the manager is not responsible for only the money that 
she has collected. Therefore for audit purposes, I have to 
keep these void tickets so he can see why I am subtracting 
this money.

Q. I am not certain I quite understand your use of the 
void tickets. Perhaps you testified, but tell us again, when 
a void ticket is used, when is a ticket voided? A. Well if 
the person ringing up the order on the register should make 
an error in charging a customer, it is voided and rewritten, 
that is one case. As I stated, if it is an interstate traveler

Merele Brigman—for Defendants—Cross



55a

and we do not catch it until the ticket has been rung up, 
that would be a void ticket.

Q. If I may stop you right here. That is what I am a bit 
puzzled about. Do you mean to say a person may come up,

- 1 3 6 -
interstate travelers and order and be served and you later 
determined that person was an interstate traveler and the 
person doesn’t have to pay for it? A. Oh no, that’s not 
what I mean at all.

Q. Explain to me so I understand what you mean. A. 
Well when some periods of the day we are real busy, and 
we may not catch them. We take the order as the button 
is pushed and it may not be until a few minutes later that 
a girl or lady notices the interstate traveler. Then we may 
not even be prepared the food, but it is already taken and 
rung up and over there on the line to be prepared.

Q. Then under that circumstance you then advise the 
interstate traveler we can not serve you? A. That is right.

Q. But your ticket would have showed that you had 
served that person? A. No, it will say on the back this 
ticket voided because of interstate traveler, and that is why 
the ticket is voided because we didn’t serve him and collect 
the money. If we collect the money we don’t void a ticket.

Q. That is your own method then of determination 
whether a person is out of state traveler? A. That is my 
only way. That is the only proof I have through the office. 
Now the managers of the drive-in have their proof, their 
word, and their girls’ word.

— 137—
Q. But as far as you’re concerned you only have the 

tickets which come into you? A. That’s right.

Merele Brigman—for Defendants—Cross



56a

Q. As a matter of fact you can not say from this stand 
what actually happens at these various establishments, can 
you, other than what comes in on tickets? A. That’s right.

Q. And you don’t have those tickets with you? A. No I 
do not.

Q. Your only method of determining a person is out of 
state traveler is that a person is in their vehicle with an 
out of state license, is that correct? A. That’s right.

Q. You will concede however that it is entirely possible 
that a person could be traveling from Georgia to North 
Carolina and pass through Columbia in a car with a South 
Carolina license plate on it, would you concede that? A. 
Well I would have to say yes, because who am I to say.

Q. In your method of checking interstate travelers isn’t 
very good yardstick is it? A. Well it is the best we come 
up with.

Q. But you admit it isn’t very accurate is it? A. Well, 
No I think it is pretty good.

Q. Do you, Mrs. Brigman, serve pedestrians in your
- 1 3 8 -

place of business? A. Not at the drive-ins. I mean there 
is a drive-in now, we have one walk-in establishment.

Q. That is Little Joe? A. Yes.
Q. Now, persons who come into Little Joe’s how do you 

determine whether they are interstate travelers? A. Well 
we have no way of telling. We just have the sign in the 
door, right at the door as you come in, and we have noticed 
people reading the sign and walking on. That is the only 
way we have of turning these interstate travelers away to 
my knowledge.

Merele Brigman—for Defendants—Cross



57a

Q. The fact is your method of determining whether a 
person is out of state traveler presupposes that a person 
can read? A. I beg your pardon?

Q. How else would a person determine your policy with­
out being able to read? A. Well that is the only way.

Q. So it is possible that interstate travelers could eat in 
your place? A. Yes it is possible.

Q. And would you concede that it is entirely probable 
that many interstate passengers eat in your various estab-

—139—
lishments? A. Well none we catch eat.

Q. But you also admit that your method of catching 
these people is not infallible? A. Like I said, it is the best 
we come up with so far.

Q. Now, as far as Main Street is concerned all your busi­
ness is walk-in business, I believe? A. Yes, that’s right.

Q. And you acknowledge you have no way of telling 
whether those persons of interstate travelers— A. No, 
only those persons that read the sign and walk away.

Q. Have you ever seen anybody read the sign and walk 
away that would not have been served anyway? A. I don’t 
know.

Q. You serve Negroes in your establishment? A. No.
Q. You don’t? A. Oh I ’m sorry we do.
Q. You do? Under what circumstances? A. Orders to 

go served in the kitchen.
Q. Explain that to us please. A. Well if a car comes 

up and it is colored people, we are not integrated, and he 
orders something and we tell him that the order will be 
packed to go and he can pick it up in the kitchen.

Merele Brigman—for Defendants—Cross



58a

Merele Brigman— for Defendants— Cross

— 140—
Q. That is only a Negro? A. That’s right. "VVe don’t tell 

interstate travelers that.
Q. You don’t tell anybody that but Negroes? A. Well 

that’s right.
Q. And the reason is you say you are not integrated in 

your establishment? A. That’s right.
Q. You mean in fact you discriminate against a man be­

cause of his race and color in services rendered in your 
establishment? A. I don’t know if that is the reason or 
not.

Q. You do make a difference based purely on race or 
color? A. No we base it on the fact we are not integrated.

Q. Well explain to me what you mean by not integrated? 
A. Well we do not serve colored people or interstate 
travelers.

Q. You put them both in the same category? A. Yes 
under the law I guess so.

Q. Under the regulation of your establishment? A. 
That’s right.

Q. A Negro person of—
—141—

Mr. Ray: If your Honor please, she already tes­
tified that they serve them food when they come up 
there and want it. She testified to that.

The Court: Serves who food?
Mr. R ay: Colored people food when they come up 

and ask for it.
The Court: I understood her to testify, didn’t you 

say the only colored people you serve are for con­
sumption not on the premises, take out orders only, 
they have to pick up in the kitchen ?



59a

A. That’s right.

The Court: If a colored person came to one of 
your drive-in restaurants and pushed the button and 
placed an order and you prepared the food, and you 
took it out and saw it was a colored person, you 
wouldn’t serve them?

A. Well we haven’t ever had that happen to my knowledge.

The Court: Well if a colored person came into 
Joe’s Restaurant down there at the sandwich shop 
on Main Street and sat down and wanted to be 
served, eat on the premises, would you serve them?

A. Our policy is not to serve them, sir.

The Court: Where did you get the idea she testi­
fied if colored people came in and wanted service— ?

—142—
Mr. Ray: If your Honor please, I was talking 

about serving food. I didn’t mean to try to confuse 
you that at the drive-in they got full service out 
there. His question was so phrased as to bring her 
answer out when she already said they serve food.

The Court: Is there any dispute about the fact 
that Piggie Park doesn’t serve colored people on the 
same footing, any dispute of the fact on that?

Mr. Ray: No, sir. I don’t think so, but they do 
serve them, I do want that in the record.

The Court: I understand she said they served 
them for take out orders, if they placed an order 
they could come in the kitchen and pick it up and 
take it out and eat them off the premises.

Merele Brigman—for Defendants—Cross



60a

Q. Does Piggie Park Enterprises advertise through the 
media of radio and television? A. No T. V., we do through 
radio and newspaper.

Q. And newspaper. Do your advertisements over the 
radio and in the newspaper say anything about your policies 
of not serving interstate passengers? A. Yes in the news­
paper, Ave do not serve interstate travelers.

— 143—
Q. What does it say in reference to service of Negroes? 

A. Doesn’t say anything.
Q. Insofar as your advertisement in the newspaper is 

concerned the public generally is invited into your estab­
lishment for equal footing, is that correct? A. That is 
the ad is an imitation.

Q. Is an invitation to the public generally isn’t it? A. 
Well yes.

Q. And Avould it be reasonable for the public generally 
to assume that there would be no difference in treatment 
because of race or color in your establishments? A. Would 
you ask the question again?

Q. Then from the reading of your newspaper advertise­
ments, the public generally has no reason to believe that 
any member of the public would be treated differently once 
that person come to your establishment and demanded food? 
A. No, sir.

Q. So a Negro then Avould read the advertisement and 
reasonably assume that you invited him in to do business 
and would not learn of your different policy until after he 
accepted your invitation, is that correct? A. I guess that 
would be right.

Merele Brigman—for Defendants—Cross



61a

Merele Brigman—for Defendants—Cross

Q. Now, with reference to your radio advertisement, 
what does it say with reference to your service of interstate

travelers, nothing? A. Nothing. 
Q. And it says—

—144

The Court: What was your answer?

A. Nothing.
Q. And it says nothing with reference to your policy of 

non service of Negroes except by way of kitchen take out? 
A. Doesn’t say that. The radio?

Q. Doesn’t say anything at all about that does it? A. No.
Q. Now then, tell me this, any Negro who comes on to 

your place with the exception of Main Street establishment 
and seeks service is told that you may have service on a 
take out basis by going to the kitchen and picking up your­
self? A. Yes.

Q. And you made no effort to determine whether that 
Negro is interstate travelers or intrastate? A. Yes.

Q. What effort? A. The same effort we have with the 
other.

Q. But no different? A. That’s right.
Q. So if an interstate traveler, a Negro, parked his car 

out on the road and walked into your place you would serve
— 145—

him around at the kitchen, would you not to take out to his 
car? A. Well if we knew he was interstate we would not, 
but—

Q. You made no effort to determine— ? A. I f he’s going 
to park down the road and come back.



62a

Q. Again your custom is based on race or color? A. On 
that to go order, yes.

Q. Now, I want to ask you something about your testi­
mony with reference to what your records show as total 
purchases in various years, you testified for a period June 
’63 through May ’64. Now we aren’t concerned with that 
here, I don’t believe, you agree on that? A. That’s right.

Q. Now then, you talked of a fiscal year ’64-65, that you 
bought $222,000 plus dollars worth of purchases. A. 
That’s right.

Q. Does your list show each supplier? A. Yes.
Q. It does. Does your list show what was purchased 

from each supplier? A. Well I have it broken down into 
meat, produce, and sirups, and cleaning fluid and cleaning 
items rather.

Q. And the amount of those purchases? A. Yes.
— 146—

Q. Now, do you have extra copies of that record? A. 
This is the only one I have with me.

Q. Do you have a copy that you could supply the Court 
with? A. At my office.

Q. With you. A. Oh no, this is the lawyer’s copy here. 
I have one in my office.

Q. You only brought one copy? A. That’s right.

The Court: Do you want to see it? Let them see it 
will you please. Is that a photo static copy of the 
original?

Mr. Ray: Original breakdown. It is not an orig­
inal record. It was broken down and put on sheets

Merele Brigman—for Defendants—Cross



63a

and photographed. In other words, your Honor, we 
had to go through—

The Court: Well I think counsel ought to be fur­
nished a copy of any summary. I mean they didn’t 
raise any question about her testifying as to what 
she done. I let it come on in, let her testify to it, but 
I think they are entitled to have this information so 
they can cross examine on it. As to what she did do, 
and how she proceeded.

—147—
Mr. Ray: I assumed when they got the answers to 

interrogatories they had all the information they 
wanted.

The Court: I don’t know what has gone on so far 
as any interrogatories or that part of it. I am just 
talking about what is going on here.

Mr. R ay: If your Honor please, I been in the case 
since, I believe, the 7th and I spent the entire time 
practically trying to get them this information.

The Court: All I am saying is I think since she 
has testified from the records which she herself has 
inspected and has come up with summaries here, I 
say that plaintiffs’ counsel should be furnished copies 
of her summaries to that if they want to ask her what 
steps she took, how she arrived at figures she has 
there. I just wonder if you do have a copy available?

Mr. R ay: This is the only copy we have. They can 
have it as long as they want it.

The Court: You gentlemen need time to look at 
that? It’s about time to recess anyway. We will 
just stop right here, 5:30, and we will continue the

Merele Brigman—for Defendants—Cross



64a

trial of this case tomorrow. Before I say what time I 
would like to know how many more witnesses you 
have, Mr. Ray?

—148—
Mr. R ay: Probably not over two, your Honor.
The Court: All right. Let’s resume the trial of 

this case at 9:30 tomorrow morning then. At this 
time we will recess until 9 :30 and if you gentlemen 
representing the plaintiff would like to inspect and 
study that summary which the witness has testified 
from, why I would direct that you have that oppor­
tunity tonight.

(The hearing recessed and reconvened April 5, 
1966 at 9:45 A.M.)

The Court: I have just had a note handed to me

and we have the privilege of having with us the 
members of the Senior Class in U. S. Government, of 
Aiken Senior High School. We are glad to have 
these students with us. We are in the process of 
having a class of non-jury trial in the Federal United 
States District Court of Aiken. In that situation the 
Judge serves as judge and jury, in that he passes 
upon and makes findings of fact as well as of law in 
the case. We are glad to have you with us as long as 
you care to stay. I would ask that you not leave 
while a witness is on the stand being examined. You 
are welcome to stay just as long as you care to. All

Merele Brigman—for Defendants—Cross



65a

right, would you bring your witness back around so 
we could finish the cross examination please.

—149—
(Merele Brigman resumed the stand, and Mr. 

Jenkins continued the cross examination.)

Q. Mrs. Brigman, will you state again what your position 
is with Piggie Park Enterprises? A. I am bookkeeper and 
buyer.

Q. And I believe you purchase the majority of the prod­
ucts used in your firm? A. That’s right.

Q. And you have in your possession the records? A. 
Yes.

Q. You don’t have them in your actual possession now 
do you? A. No, they are in my office.

Q. Do you know each firm with which your organization 
did business and has done business since July of 1964? A. 
Yes.

Q. And you know what was purchased from each of these 
firms? A. Yes.

Q. You made a statement yesterday with reference to the 
percentage of products and goods used by your organiza­
tion that comes from South Carolina. You recall that? A. 
Yes.

Q. Will you state again what your figures were? A. I
—150—

believe I said 75% of the food that we serve, food is proc­
essed and/or manufactured in South Carolina.

Q. And you would limit your remarks only to food? A. 
Food that we serve, yes.

Q. Food that you serve? A. Right.

Merele Brigman—for Defendants—Cross



66a

Q. Now, you don’t—you would not use those same figures 
would you, with reference to other things which are auxili­
ary to the service of food? A. No I would not.

Q. With reference to paper products, do you know how 
much paper products your outfit uses? A. Well I did not 
use paper products in that figure because I did not consider 
that a food item.

Q. Now, would you care to make a statement with refer­
ence to it, whether your paper products are from inside the 
state of South Carolina? A. We buy from Epps Fitz­
gerald, which I believe he testified yesterday how much of 
his product came from out of state, which I don’t recall.

Q. You don’t have any answer different from what was 
testified to yesterday? A. No I do not.

Q. I am interested in the use of your word processed in 
reference to food. Would you care to elaborate on that?

— 151—
A. Well processed, I mean made in ready to use form. 
Ready to cook, like a hamburger if it comes into a state as 
a cow, we could not serve it as such. It has to be processed 
into a patty.

Q. Then when you use the figure 75% of the food proc­
essed, you mean after the food gets into the state of South 
Carolina and whatever is done to it prior to its reaching 
your establishment? A. That’s right.

Q. Your figure of 75% has nothing to do with where the 
food originally come from? A. Well the figure I arrived 
at was if it was processed or slaughtered in South Carolina.

Q. Where did you get your figures from? A. I don’t 
understand that.

Merele Brigman—for Defendants—Cross



67a

Q. How do you arrive at your figure of 75% ? A. By 
adding all of my invoices up and taking the food items out 
and then determining if they are processed in South Caro­
lina ; and by processed, I called these people and ask these 
people when I buy from them if it is processed or grown in 
South Carolina.

Q. Do you go further and ask with references to say, 
let’s say beef which is processed here, do you go further in 
your inquiry and determine where the beef comes from prior 
to its being processed in South Carolina? A. No I do not.

—152—
Q. Do you have any figures with reference to how much 

beef used in your firm comes from other states, other than 
South Carolina? A. Unprocessed you mean?

Q. I am talking about how the food gets into the State of 
South Carolina. A. Do I have any figures?

Q. Yes. A. No I do not.
Q. So your figure of 75% does not apply to foods actually 

coming into the State of South Carolina does it? A. My 
figure applies to what we buy that is processed in South 
Carolina, or not processed in South Carolina. I have broken 
it down to out of state and in state.

Q. Can you be more specific and answer the question 
which I asked. Your figure of 75% does not reflect the 
amount of foodstuffs which you use which comes into the 
state of South Carloina from other states?

The Court: Let me ask you this question. Mr. 
Wilkerson on the stand yesterday of Greenwood 
Packing Company said a big part of hogs they bought 
were out of state, but they came into the state alive,

Merele Brigman—for Defendants—Cross



68a

and after they purchased the live hogs that they 
slaughtered them and processed them in Greenwood.

—1 5 3 -
Now, did you include that?

A. Yes, sir. I included processed items.

The Court: In your 75% ?

A. Yes, processed, I believe I stated. That is where I arrive 
at processed product, not the product before it is processed.

Q. So it is entirely possible that 100% of the meat which 
you use could come from out of the state of South Carolina 
where your figure refers only to that food which is actually 
processed here in South Carolina, even though it may have 
come from out of the state? A. You mean live?

Q. Yes. A. That’s right.

The Court: You didn’t count the live hogs that 
came in?

A. No.

The Court: I f they came in live from out of state 
and were processed in the state you considered that 
as being food that was in state food so to speak?

A. That’s right.
Q. And does that same answer apply to frozen food 

which comes into the state of South Carolina, but which is
—154—

processed after reaching here? A. Well I can’t recall any 
food we buy frozen. All the frozen food we buy, I put out 
of state, put it in the out of state figure.

Merele Brigman—for Defendants—Cross



69a

Q. Do you know whether the food which is processed here 
may come into the state frozen! A. Well I have been in­
formed by Greenwood Packing, and several, or most of our 
suppliers, that it is fresh and slaughtered in South Caro­
lina. Now I believe Mr. McHugh from Dreher Packing Com­
pany testified yesterday that some of his may come in 
frozen, I am not sure on that. But I was informed by him 
when we started buying patties that his product was proc­
essed in South Carolina. The beef patty.

Q. Now, the question isn’t whether it is processed here 
now, we are away from that. You have testified that you do 
not consider live products brought into South Carolina for 
slaughter and for further processing as being out of state 
meat. I am now asking with reference to meats which come 
into the state of South Carolina frozen, which are processed 
after they are here. You have no way of knowing— ! A. 
No, I did not ask if they come in here frozen or fresh, no.

Q. So you have no way of knowing that! A. No. But, 
like I said, Greenwood Packing and several of our other 
suppliers have told me these livestock are slaughtered and 
processed. Slaughtered, I assume when they come in live.

— 155—
Q. You heard the testimony yesterday of several repre­

sentatives from various meat packing plants who testified 
that their meat comes in, in large numbers frozen, did you 
hear that testimony! A. Like I said, I heard Mr. McHugh 
from Dreher Packing. Now on the others I didn’t hear 
them say frozen. I heard them say buy livestock.

Q. Did you hear the testimony of Mr. Wilkerson of 
Greenwood Packing Plant! A. Yes, sir.

Merele Brigman—for Defendants—Cross



70a

Q. Do you recall his testimony was that two-thirds of his 
products that are sold in South Carolina come from out of 
the state of South Carolina? A. Yes, sir. I didn’t hear him 
say frozen.

Q. Do you have any figures which show the total amount 
of purchases by your firm during the year, fiscal year from 
June 1, 1965 to December 12, 1966? A. Do I have any
figures?

Q. Yes. A. I believe that is them. All I have is what 
you have there.

Q. A summary of which I obtained from you yesterday? 
A. That’s right.

Q. Do you know what is on it, or would you like to see?
—156—

A. I don’t remember every exact figure.

The Court: I believe she already testified that the 
fiscal year ’64-65 that her firm bought $22,845 worth 
of merchandise. Is that merchandise, or— ?

A. That is merchandise.

The Court: That is everything?

A. That’s right.

The Court: And that from June 1st, 1965 through 
December 12, 1965, purchased merchandise totaling 
$122,724.13.

A. That’s right.

Merele Brigman—for Defendants—Cross

The Court: That included everything?



71a

A. That’s right. But in breaking it down, my percentage, 
I only included food items, not the overall total.

Q. And breaking down your percentage then, Mrs. Brig- 
man, you did not include purchases from Epps Fitzgerald 
Paper Company? A. No I did not.

Q. Those purchases were $6,478 during the six months 
period, is that correct? A. Yes.

Q. What did you buy from High Grade Foods? A. We 
buy pork.

—157—
Q. Pork. How long have you been buying from them? 

A. We bought the last six months from them.
Q. Did you buy anything from High Grade a year ago? 

A. I don’t recall right off, but it would be listed on there 
if we did. We started around last July.

Q. The purchases made from Pearce-Young-Angel was 
food? A. Yes, sir.

Q. You include that in your figure of 75% purchased 
inside, that is processed and manufactured inside the state 
of South Carolina? A. I put that in out of state, as he 
testified yesterday, most of his items are out of state.

Q. That is purchases $19,900 plus from them during this 
six months period? A. We buy quite a bit.

Q. Where did you put the Pepsi-Cola Bottling? A. In 
state. He testified yesterday his product was processed in 
South Carolina.

Q. He also testified yesteday that the major ingredients 
of his product is sugar and sirup and both of these almost 
100% come outside the state of South Carolina? A. Yes.

Merele Brigman—for Defendants—Cross



72a

Q. Yet when mixed with water after it gets here yon 
say it is not interstate commerce? A. That’s right.

— 158—
The Court: You didn’t include that in your 75%?

A. Yes because it is a finished product in South Carolina.

The Court: I mean you considered that as in state 
products rather than out of state products?

A. Yes.
Q. Could your business successfully operate using noth­

ing but food alone? A. Well, I don’t know.
Q. As I understand you occupy a rather major position 

in your firm, is that correct? A. That’s right.
Q. Would you consider your answer again. Can your 

firm successfully operate serving nothing but food alone? 
A. Well that is all we do serve.

Q. Using nothing but food alone? A. Oh, well no be­
cause we have to have electricity and anything it takes 
to run a business.

Q. Such as paper products essential to your business, 
is that correct? A. No, we could use China.

Q. But you know of any China manufactured in the
- 1 5 9 -

State of South Carolina? A. No, but we could reuse it 
and it would cut the cost.

Q. The fact is you do not use China? A. We do in Little 
Joe establishment downtown.

Q. Is not the volume of business done in the Little Joe 
establishment downtown a minor part of your business? 
A. Well, it is not the major.

Merele Brigman—for Defendants—Cross



73a

Q. In fact is the minor portion isn’t it? A. Well, yes.
Q. And a real small portion of that, isn’t it? A. No, it 

is about a fifth.
Q. About one-fifth and the other places you do not use 

China, you use paper products? A. That’s right.
Q. Bought primarily from Epps Fitzgerald? A. That’s 

right.
Q. As your other business are operated other than Little 

Joe, as they are presently operated, could they operate 
without the use of paper products? A. Well, it would be 
hard.

Q. Is hard synonymous with impossible? A. Well I 
would not say impossible.

Mr. Jenkins: Will you indulge me a moment, your 
Honor?

Q. Bruce’s Foods is a supplier, is that correct? A. That’s
- 1 6 0 -

right.
Q. What is Bruce’s Food Supply Company use? A. 

Hot sauce.
Q. Did you include that in your 25% outside the State 

of South Carolina? A. 25%, no I included that in the 75%.
Q. I would like to know where is Bruce’s sauces made? 

A. I believe that came from Liberia.
Q. That is in Louisiana? A. Right.
Q. You say you include that in your 75% of being pro­

duced or processed inside of South Carolina? A. Well 
that is because we do not serve hot sauce. We use hot 
sauce to process an item that we sell, so we do not serve 
hot sauce.

Merele Brigman—for Defendants—Cross



74a

Q. Could you explain that without giving away a trade 
secret? A. I don’t know the trade secret so I could ex­
plain.

Merele Brigman—for Defendants—Cross

The Court: How do you get the sauce off the meat 
before you serve it or before you sell it?

A. It isn’t sauce on the meat, not as hot sauce no. It would 
not be a Piggie Park sauce until it is processed locally at 
our company.

Q. I see. A. We don’t serve hot sauce.
— 161—

Q. I see. You have some special recipe that is called 
Piggie Park? A. That’s right.

Q. The ingredients that go into that special sauce come 
from outside the state of South Carolina? A. That’s 
right.

Q. You merely put them together here? A. That’s right.
Q. And you put in that same category, don’t you, meats 

which come outside of South Carolina, but which are put 
together here? A. I am sorry.

Q. You put into the same category with the sauces 
meats which come into the State of South Carolina from 
other states, but which are put into some form here and 
come over to your place from South Carolina? A. That’s 
right, processed.

Q. Now, you have been buying from Bruce’s for how 
long? A. Well, as you can notice that figure, we don’t 
buy too much from them, but the last several years.

Q. Several years? A. Yes.
Q. Now, Dubouy Chemicals, what you purchase from 

them? A. Soap.



75a

Merele Brigman—for Defendants—Cross

— 162—
Q. What is soap used for? A. Scrub the floor.
Q. That is in your business? A. That’s right.
Q. Wash dishes with it too? A. No, we don’t use dishes. 
Q. Well downtown? A. We don’t use that soap.
Q. I see.

The Court: You do wash those dishes though? 

A. Oh yes.
Q. You purchase hamburger from K-Mart? A. Yes.
Q. Do you know where those hamburgers come from? 

A. I am sorry, it is not hamburger, it is hamburger meat.
Q. Well you purchase this merely says hamburger, you 

purchase hamburger meat from K-Mart? A. That’s right.
Q. You don’t know where that meat comes from, do you? 

A. Well they grind it down there themselves, but we don’t 
buy it—we process chili out of it. We make chili.

Q. So whatever the amount is, you include that also in
—163—

in-state? A. Yes, for the simple reason they process at 
K-Mart then we bring it up to Piggie Park and process it 
into chili.

Q. You don’t know where it comes from before it gets 
to K-Mart? A. No.

Q. You do know the K-Mart is a chain outfit, head­
quarters not in South Carolina? A. That’s right.

Q. Harvin Packing, where is Harvin? A. Sumter, South 
Carolina.

Q. So we will assume then the mere small amount of pur­
chases from Harvin would be included in the 75% ? A. 
That’s right.



76a

Q. What do you buy from Pearce-Young-An gel? A. We 
buy produce, French fries, shrimp, fish, mustard, mayon­
naise, salt.

Q. You purchased, if I may, the last six months, pur­
chases amount to $19,967, is that correct? A. Yes, if that 
is what I have there.

Q. I am reading from your figure. A. Yes.
Q. How much of this foodstuff comes from outside the 

State of South Carolina? A. Well, I put it all in out of 
state except the mayonnaise.

— 164—
Q. How' much mayonnaise did you buy during the last 

six months? A. Well we buy some from P. Y. A. and 
some from Thomas & Howard. We average about twenty- 
five cases every three weeks, and that mayonnaise is made 
in South Carolina.

Q. Cost how much approximately? A. Well, when we 
buy from P. Y. A. $6.45 a case, and now buying from 
Thomas & Howard, which is C. H. Sour Company, and 
$6.09 a case. And that is made in Greenville, C. H. Sour 
and Wood Brothers in West Columbia from P. Y. A.

Q. That is mayonnaise? A. Right.
Q. What are the ingredients in mayonnaise? A. Egg 

yolks is a good item for it, I don’t know what else is in it.
Q. You made above $10,000 purchases from Thomas & 

Howard during that same six months period, how much 
of that did you include in your 25% out of state? A. Well 
a lot of it. Out of state?

Q. Yes. A. Oh, not too much.
Q. What do you buy from Thomas & Howard? A. We 

buy mustard and some mayonnaise, as I mentioned, and

Merele Brigman—for Defendants—Cross



77a

Worcestershire sauce, and vinegar, and our cleaning items
— 165—

except that soap.
Q. Looking at your list, you have purchases amounting 

to approximately $25,000 which you only indicate by calling 
petty cash, PP 1 and something else. Explain what that 
means? A. Well each drive-in has three or four hundred 
dollars ready cash on hand, and from that money they buy 
bread, which is Palmetto Baking Company made in Orange­
burg, South Carolina; milk, which is Coble Dairy, milk from 
the cows in Florence, South Carolina; and chickens, which 
we buy from Southeastern Poultry, which is South Caro­
lina, and which is South Carolina grown; and now was that 
the total twenty-five in the first column?

Q. Well, I ran up a rough total. A. See, I have that 
broken down. Some of the money is spent on other items, 
but I did not include in food because all my petty cash 
I have broken down each item.

Q. Would that be a figure under the extreme right? A. 
Where I said, bread, milk and chickens.

Q. Yes. A. That’s right.

Mr. Jenkins: No further questions.
The Court: I would like to ask one question. 

When you got up your percentages, you said you 
only considered foods served by your company. Did

— 166—
you do that on your own, or did you consider foods 
upon the advice of your counsel?

Merele Brigman—for Defendants—Cross

A. Upon advice of my counsel.



78a

The Court: He told you only to consider the foods 
that were served?

A. Well, that’s right.

The Court: He told you not to consider such items 
as paper cups, paper plates, napkins, and that kind 
of thing?

A. Paper items, yes.

The Court: All right.

Redirect Examination by Mr. Ray:

Q. Prom these items you also excluded hickory wood and 
things like that? A. Yes.

Q. With reference to Bruce’s Foods in ’63-64, ’64-65, and 
’65-66, what was the dollar amounts that are shown on 
there? A. On Bruce’s Food, ’64-65, $183.75.

Q. $193.75? A. $183.75.
Q. All right. A. And June through December of ’65 was 

$287.50.
Q. I hand you some papers there, and do you recognize

— 167—
those papers? A. Yes, sir.

Q. And how were they compiled? A. Well I did this 
from this breakdoAvn I have here. This was food; this 
was just the food. That includes everything we bought, 
and this is just the food.

Q. Just the food items, and at whose direction did you 
prepare it? A. Mr. Ray’s.

Merele Brigman—for Defendants—Redirect



79a

Q. Is that me? A. Right.
Q. And was I present when it was prepared? A. Yes.
Q. And what categories were the items on there divided 

into? A. Out of—processed out of state, and processed 
in state.

Q. And did those items include anything except food? 
A. No.

Q. In food I mean, items to eat? A. That’s right, items 
to eat, except beer.

Q. Was beer included? A. Yes.
Q. How about tea, coffee, and things of that nature? A. 

Yes.
— 168—

The Court: Mr. Ray, I would like to get your posi­
tion straight on one point. Is it your position that 
foodstuff which originate out of state, and subse­
quently brought into the state and are processed in 
some manner within the state then should be con­
sidered for the purpose of this action as food that 
has not moved in interstate commerce?

Mr. Ray: Not exactly the way you said it, your 
Honor. When something comes in broken down into 
a lot of raw ingredients, like salt and pepper goes 
into sausage, it is not a food item. The food item, 
we maintain, has not moved in interstate commerce 
if it is manufactured and made into something spe­
cial ; and, of course, live hogs and live cows we main­
tain until they are food items, and until they are 
killed they are not edible, and there are decisions 
we think hold that until it becomes recognizable 
food, you would pick up and eat, or at least to some

Merele Brigman—for Defendants—Redirect



80a

degree, there it is not food, under the definition and 
decisions concerning food. And, of course, for the 
same reason we don’t feel paper plates are food 
items.

The Court: It is not food, but the statute specifi­
cally says, speaking of restaurants, it serves or 
offers to serve interstate travelers, or a substantial

- 169-

portion of the food which it serves or other products 
which it sells has moved in commerce.

Mr. Ray: That’s right, sir. We maintain, of
course, it don’t sell paper plates.

The Court: You sell food and giving the plate and 
giving the cup ?

Mr. Ray: Yes, sir.
The Court: So you are not actually selling the 

cup?
Mr. Ray: No, sir. If we wTere selling cups, we’d 

set cups up and sell them, I mean as an item. But 
that is not the man’s business. His business is serv­
ing food.

The Court: Well, is the cost of the cup figured 
into the cost of the Pepsi-Cola sold?

Mr. Ray: If your Honor please, you would have 
to ask her because I don’t knoAv the answer to that. 
Your Honor, I have here, I would like to introduce 
it in evidence—

The Court: You don’t show it to me; show it to 
counsel. You have any objection?

Mr. Perry: Yes, your Honor, we do.
The Court: State the grounds of your objection.

Merele Brigman—for Defendants—Redirect



81a

—170—
Mr. Perry: May it please the Court, we object to 

this evidence upon the ground that it constitutes a 
self-serving declaration, and has no probative value 
to these proceedings. We submit that the defendant 
has the opportunity to bring these suppliers into 
court, just as the plaintiffs have done, and the 
entries into the defendant’s bookkeeping system 
would not constitute the best evidence in this particu­
lar respect, and more over appears these entries 
constitute excerpts from the defendants’ records. 
They do not constitute the entire books and records 
of accounts, but rather they constitute excerpts and 
as such the original records themselves, if any rec­
ords would be of pertinency to these proceedings, 
then of course the original records would be the 
best evidence and not excerpts from them. For all 
these reasons we submit that the evidence is inad­
missible.

The Court: All right, Mr. Bay?
Mr. R ay: If your Honor please, that is a compila­

tion of what she already testified to on the stand; 
and for the court to— I intend to introduce this too, 
the breakdown here, but it is unintelligible, as a 
matter of fact it would be unintelligible to them with­
out her to explain it. And she testified to everything 
on here and these figures that we have given are in

- 1 7 1 -
accord with the evidence that he has introduced him­
self, and merely total it up for the convenience of 
the court.

Merele Brigman—for Defendants—Redirect



82a

The Court: Well, of course, that is very fine, and 
I would have no hesitancy of permitting in evidence 
a summary of records which were before the court, 
but you don’t have your records here.

Mr. Bay: If your Honor please, all of this was—
The Court: That is strictly a compilation too. I 

am talking about original records. If you had the 
records here—if this is introduced, would your rec­
ords from which this is made be available?

Mr. Bay: Yes, sir.
The Court: All right. On that basis I will let it 

in. They say their records will be made fully avail­
able to you.

Mr. Bay: If your Honor please, we have not in­
tended—

The Court: Here, mark this in evidence.
Mr. Bay: To clarify our position of my client 

with the court, last Monday when we were up argu­
ing this I told him any information he wanted he 
could have.

The Court: What I am saying is ordinarily I 
wouldn’t permit any summary of records which are 
not before the court in evidence. I mean in order

— 172—
to facilitate the trial, I would surely permit a sum­
mary of records which were produced before the 
court. Based on your statement that the defendants 
records will be made fully available to plaintiffs’ 
counsel if they care to see them, I will let this sum­
mary in.

Merele Brigman—for Defendants—Redirect



83a

Mr. Ray: All right. Could I say one more thing 
in that connection?

The Court: I haven’t cut you off.
Mr. Ray: All right, sir. Insofar as these items 

are concerned, and the amounts, we take the posi­
tion that certain of them legally have not moved in 
commerce, and that is simply we don’t deny every­
thing he bought, or anything that he bought, or who 
he has bought it from. And, of course, I am assum­
ing that the invoices that were introduced yesterday, 
and I believe yesterday I said we would probably 
be better off just bringing the books up here than 
try to copy and possibly incur such a terrible ex­
pense as 50  ̂ per page for all the ledger sheets. We 
are not trying to keep the evidence from before the 
court. We feel—

The Court: I made no insinuation or intimation 
that you were trying to cover up anything. I am 
merely ruling on an offered exhibit, and I said I 
would let it in under certain conditions.

Mr. Ray: Yesterday I didn’t feel that without you
- 1 7 3 -

knowing the total thing, and having some volume to 
measure this by what is substantial and what is not 
substantial, that is why these things are being 
brought in. Just a pile of foods, you don’t have any­
thing to measure it by.

Q. Could I hold this back a minute please maam. On 
what I have here marked Defendants’ Exhibit E, Mrs. Brig- 
man, items that were not food, were not included in arriv­
ing at these percentages? A. That’s right.

Merele Brigman—for Defendants—Redirect



84a

Q. All right, maam, now also included in out of state 
purchases were merchandise that we learned yesterday 
were in state items, such as produce from Pearce-Young- 
Angel, is that correct? A. Produce from Pearce-Young- 
Angel.

Q. Epps Fitzgerald? A. We don’t have Epps Fitz­
gerald included.

Q. That’s right, but we learned yesterday was a part of 
that made in the State of South Carolina? A. That is 
what Mr. Hill testified to yesterday.

Mr. Eay: I believe, counsel, we want to get that 
in there. We are not trying to hide anything. Mark 
this too please maam. If your Honor please, I 
marked these three sheets as an exhibit.

The Court: Any objection to that?
— 174—

Mr. Perry: Of course we stick with our main ob­
jection, your Honor, but we do adhere to your 
Honor’s ruling.

Mr. Ray: It is on the same basis. The books and 
figures will be available, any figure they question 
or want to look at.

The Court: I might comment that plaintiffs coun­
sel permitted an examination from that without any 
objection, and you cross examined without any ob­
jection, so I think actually your objection to that 
would come pretty late.

Mr. Perry: Yes, sir, your Honor. I am sure that 
is correct.

The Court: In any event I will let it in.

Merele Brigman—for Defendants—Redirect



85a

(Received a newspaper ad and marked as De­
fendants’ Exhibit G.)

Q. Do you recognize this, Mrs. Brigman 1 A. Yes. That 
is the ad we run in the State and Record.

The Court: Do you have any objection to that?
Mr. Perry: None.
The Court: Without objection that will be re­

ceived.

Q. Mrs. Brigman, in connection with that ad, is this ad 
from two or three years ago? A. No, sir.

— 175—

Q. Approximately how old is that ad? A. We started 
running that particular ad about the first of March.

Q. And is it typical of the ads that you have run? A. 
Yes, except the size is larger.

Q. Except what, maam? A. The size of the ad.
Q. Does this ad have any reference whatever to inter­

state travelers? A. Yes, it says on the bottom, we do not 
serve interstate travelers.

Q. Does it have any reference to Negroes? A. No it 
does not.

Q. Why does it not, why haven’t you made reference to 
that? A. Well we have tried to put that in our ad, but the 
paper refuses to print it.

Q. And that is the reason it—is that the reason it is not 
run there?

Merele Brigman—for Defendants—Redirect

The Court: What was the reason?



8Ga

Q. The paper will not put it on there. Some law with 
reference to it, your Honor. A. Yes.

Q. Mrs. Brigman, I hand you a handful of papers here
— 176—

and ask you if you recognize those? A. Yes, sir.
Q. And are they part of the records of Piggie Park 

Enterprises? A. Yes, sir.
Q. And what are they? A. These are void tickets.
Q. For what period? A. For the last four weeks.

Mr. Ray: If your Honor please, we are going to 
offer these things here to see if counsel has objec­
tion.

The Court: All right.
Mr. Ray: I suppose if you staple them at one 

corner, we might get them all in one.
The Court: Any objection to these?
Mr. Perry: For whatever they are worth, your 

Honor, we have no objection.

(Received the tickets described and marked as 
Defendants Exhibit H.)

The Court: Are you qualifying your objection? 
Mr. Perry: No, your Honor.

Q. Mrs. Brigman, yesterday you were asked the ques­
tion concerning why you didn’t have these tickets. Now,

- 1 7 7 -
are these a part of your records that you were testifying 
to yesterday? A. Yes.

Merele Brigman—for Defendants—Redirect



87a

Q. Are they records concerning—what are they records 
o ff A. These are void tickets, I mentioned yesterday.

Q. Would you speak up? A. These are in reference to 
the void tickets that I mentioned yesterday on how if we 
have an error in a ticket that has already been rung up, 
we have to subtract from our daily total, and this is the 
record that I have to certify that void ticket.

Q. In other words to show why it was not included in 
your cash when you make out your tax return at the end 
of the year, is that right? A. That’s right, and show why 
the money was not deposited in the bank.

Q. And does these tickets have on them the reason they 
were voided? A. Yes.

Q. Do you write that on there? A. No, the manager of 
each Piggie Park writes the reason, and it has to be signed 
by the girl that it is rung up on, by the girl I mean the 
curb girls. Our curb girls are numbered, and each ticket

— 178—
is run up on the girl and she has to certify the reason that 
the manager wrote back her.

Q. All right, what else are these tickets used for besides, 
do these tickets have any purpose in the business besides 
showing what was ordered? A. These particular tickets?

Q. All of them tickets as a whole, do they show any 
other purpose in the business, do they serve any other 
purpose in the business? A. Well, this is what we write 
our order on, and the amount of purchases on the tickets, 
and it has the girl’s number, and the green copy we give 
to the customer and we keep the duplicate copy.

Q. Does it show whether the sale was made outside or 
inside? A. Yes, sir.

Merele Brigvian—for Defendants—Redirect



88a

Q. What would that mean? A. The station number up 
in the lefthand corner of the ticket, it has the station num­
ber, by that, that is the number on the telatray outside on 
the parking lot.

Q. If it has inside, what does that mean? A. It means 
the customer came inside and ordered.

Q. And did not order through the telatray? A. That’s 
right.

Q. Would you tell us Avhat reasons appear on those typi-
—179—

cal tickets as a reason for voiding? A. This first one says 
party was from Georgia, and it is signed by Doris Mills 
and Carol Russell.

Q. All right, would you look at another one. A. This 
one says, party was from Tennessee, did not know this until 
order was taken.

Q. Would you look at another one? A. This one says, 
party ordered one-fourth fried chicken, not four orders of 
fried chicken, am voiding $1.80 from three, was able to use 
chicken, Doris Mills and the curb girl.

Q. Would you read another one? A. Party would not 
pick up order at back door.

Q. Did it say anything else on there? A. No.
Q. All right, would you turn to another one? A. This 

one said, colored people, and signed by the manager and 
curb girl. This one said, left curb just time the order was 
placed. Colored man in the car and from out of state. This 
one says, car from Georgia. This one said, people had 
colored person in car and didn’t want to take order to go, 
no new ticket. This one has—

Merele Brigman—for Defendants—Redirect



89a

Q. Well never mind. Go ahead. A. Party was colored, 
would not pick—would not come to back door for order. 
Party was colored, would not pick up order at back door.

- 180-

Party wanted one-half fried, not special.
Q. What does that mean? A. Yes, sir, whoever took 

the order over the telatray misunderstood the party ap­
parently. They wanted two half fried chickens, and not 
two quarter fries, and therefore they had already rung 
it up and made an error; they voided the ticket. Car from 
North Carolina. Car was from Georgia. Order picked up 
at Two Knots Road. This was a phone order and the per­
son called Number Two Drive-in and went to Number 
Three and picked it up.

Q. Mrs. Brigman, when you order food from these vari­
ous people, order meat products and things of that nature, 
have you made a specific effort to inquire whether these 
products were South Carolina products or not? A. Yes, 
sir.

Q. With reference to Greenwood Packing Company, had 
you asked them or inquired of them when you ordered—

Mr. Perry: Your Honor, pardon me please. I 
apologize for not waiting until he concluded the 
question, your Honor, but the way it began it was 
obviously leading and I thought I ought to interpose 
an objection on the ground it is phrased as a lead­
ing question.

The Court: All right. Restate your question.

Merele Brigman—for Defendants—Redirect



90a

Q. With reference to Greenwood Packing Company have
— 181—

you ever had any occasion to call them! A. Yes, sir, we 
buy from Greenwood Packing Company.

Q. And what was the nature of your inquiry of them! 
A. Well I have repeatedly asked them are their shoulders, 
or their meat product that we buy from them processed in 
South Carolina. They have told me it is slaughtered and 
processed in their Greenwood Packing Plant in Greenwood, 
South Carolina.

Q. Do you also buy from High Grade foods! A. Yes, 
sir, we do.

Q. Would the same thing apply to High Grade Foods! 
A. Yes, they have told me that all their meat that we buy 
from them is slaughtered and processed in Orangeburg, at 
their slaughtering house.

Q. How about Southeastern Poultry, do you buy from 
them! A. Yes we do, we buy chickens.

Q. Where is their main place of business, where do you 
order from ! A. I order from the plant on Sunset Blvd. 
in West Columbia.

Mr. Ray: I have nothing further of this witness, 
your Honor.

Recross Examination by Mr. Jenkins:
— 182—

Q. Mrs. Brigman, will you look at this ticket. Will you 
read it please! A. People had colored person in car and 
didn’t want to take order to go, no new ticket.

Q. Does that mean to you that there were persons in the 
car other than the Negro! A. Well it could be interpreted 
that way.

Merele Brigman—for Defendants—Recross



91a

Q. What is the policy of your company with reference to 
Negro and whites in the same car as those persons ap­
parently were? A. We do not serve them.

Q. Don’t serve any of them under that circumstance? 
A. No.

Q. Is that only because of the presence of the Negro? 
A. That’s right.

Q. That is correct? A. Yes.
Q. Mrs. Brigman, despite your inquiries made of Green­

wood Packing Plant with reference to where their meat is 
processed, you heard the testimony on yesterday as to 
where 66% of that meat comes from did you not? A. Yes.

Q. That was from out of the state of South Carolina? 
A. I believe that is what he said.

Q. I am interested in knowing when did you begin mak-
—183—

ing inquiries of your suppliers as to where their products 
are processed? A. When this Civil Rights Bill was 
passed.

Q. Before that time you weren’t interested? A. Well 
we tried to limit our purchases to South Carolina.

Q. How long, Mrs. Brigman, did you say you have 
worked for Piggie Park Enterprises? A. March o f ’64.

Q. March o f ’64? A. That’s right.
Q. Your use of the word processed rather intrigues me. 

Suppose you were in Georgia and have a Ford automobile 
that is assembled in Atlanta, the steel came from Pitts­
burg, and rubber came from Ohio, and paint and the 
lacquer came from Minnesota, and nylon came from North 
Carolina. It came in as parts, but the final assembly of that 
car was in Atlanta, and the car was sold in Columbus,

Merele Brigman—for Defendants—Recross



92a

Georgia. What is your interpretation with reference to
whether that is interstate commerce?

The Court: I don’t think I would force her to an­
swer that. I didn’t hear her say she was a law grad­
uate and ever studied law, and I think that is getting 
outside the field this witness ought to be called upon 
to answer.

—184—
Mr. Jenkins: I was just wondering if the person 

that gave her—
The Court: The person that gave her instructions 

is not on the stand, and I don’t want to place this 
witness in the position of answering a hypertechnical 
question the Court would have to pass on.

Mr. Jenkins: We are not going to pursue it.
The Court: I am sure you are not because I told 

you not to.
Mr. Jenkins: No further questions.
The Court: You have anything further? I want to 

ask this witness, I notice according to your ad you 
have three drive-in restaurants in the Columbia area.

A. That’s right.

The Court: All are located on main highway?

A. Yes.

The Court: Columbia Highway, Charleston High­
way, Sumter Highway, and some other highway

Merele Brigman—for Defendants—Recross



93a

listed in your ad, and your Little Joe Sandwich Shop 
in the 1400 block of Main Street.

A. Yes.

The Court: How far out is that?

A. How far is that 1400? It is about three blocks down
— 185—

from the State House.

The Court: It is on Main Street of Columbia?

A. Yes.

Merele Brigman—for Defendants—Recross

The Court: Now, when a person drives up to one 
of your drive-in restaurants, the way it is operated 
today and has been operated for the last several 
months, you do not have a curb girl to go to the car 
to take an order, do you?

A. No, sir.

The Court: You push a button that registers on a 
switchboard of some kind on the inside of the restau­
rant?

A. That’s right.

The Court: Then someone there through the
microphone says, order please?

A. That’s right.



94a

The Court: And the person sitting in the car very 
likely is not even seen by the person taking the 
order?

A. Not unless he was seen when the car drove in.

The Court: But you don’t make any special effort 
to see whose in the car, whether colored or white 
person, or whether it is South Carolina license, or 
Georgia license when the car drives up, is that right?

—186—
A. Yes, sir, that’s right except, like I say, if they happen 
to see.

Merele Brigman—for Defendants—Recross

The Court: Well if they happen to drive out in 
full view, if you look you might see, but you don’t 
make any extra effort to see whether it is white or 
colored person, or South Carolina license or Georgia, 
or North Carolina license?

A. No extra effort.

The Court: When you ask for their order, do you, 
or do you not, ask them what state they are from?

A. No.

The Court: You make no inquiry?

A. Not through the telatray, no, sir.

The Court: You take the order, go ahead and pre­
pare it, then if your waitress takes the order out,



95a

after the hamburger, barbecue sandwich or chocolate 
milk shake you get it on the tray, if she takes it out 
there and sees a North Carolina license, then what 
does she do ?

A. Well they have instructions to refuse service.

The Court: Just the license itself. You don’t make 
any inquiry of the individual?

A. No, sir.

The Court: But if you see an out of state license
— 187—

on the car you just take it back?

A. Well no, sir. We have them to ask them if they are 
passing through, or if they are living in Columbia.

The Court: That is after they see the out of state 
license. If it is South Carolina license though no in­
quiry at all is made?

A. No, sir.

The Court: Now, this sign in which you have 
posted, according to the pictures in evidence, says 
we do not serve interstate travelers. That is lo­
cated on one side of the drive-in isn’t it?

Merele Brigman—for Defendants—Recross

A. It is in the front window.



96a

The Court: If you happen to drive in from the 
other side, you wouldn’t see that would you?

A. No, sir, not likely.

The Court: Do you have any policy of making 
any inquiry or any determination before you accept 
an order as to whether a person is intrastate traveler, 
or interstate traveler?

A. Only like I said yesterday, if the curb girl, you know 
they are in and out all the time on the curb, they will come 
in and say that car that just drove up was from out of 
state. Then when they mash the button, the telatray op­
erator will say I am sorry we do not serve interstate

—1 8 8 -
travelers.

The Court: Do you ever ask them to show a 
driver’s license, registration of the car or anything 
like that?

A. No.

Merele Brigman—for Defendants—Recross

The Court: All right. You may step down.
Mr. Bay: If your Honor please, I ’d like to call 

Mr. Shealy.

*  *  *  # #

—191—
•  *  *  *  #



97a

Mr. Ray: If your Honor please, I would like to 
call Miss Jemell Richardson.

Jemell Richardson—for Defendants—Direct

Jemell R ichardson, called as a witness in behalf of the 
Defendants, who being first duly sworn, testified as follows:

Direct Examination by Mr. Ray :

Q. Your name is Miss Jamell Richardson? A. Yes, sir. 
Q. Where do you live? A. 2208 Irvin, Columbia, South 

Carolina.
Q. How long have you lived there? A. Five years.
Q. And by whom are you employed? A. Piggie Park 

Enterprises.
Q. And prior to that, by whom were you employed? A. 

Before Piggie Park, Walgreen Drugs.
Q. And before that? A. F. W. Woolworth.
Q. What period of time would that cover? A. Wool- 

worth would cover ’63 and ’64; Walgreen’s would cover ’64 
and the middle part of ’65.

Q. And you are presently employed by Piggie Park En-
— 192—

terprises? A. Yes, sir.
Q. In the course of your employment what do you do? 

A. I am a curb girl now.
Q. And have you so been employed since you worked for 

Piggie Park Enterprises? A. No, sir.
Q. What was your other type of work? A. I was man­

ager of Walgreen’s Drugs.
Q. No, at Piggie Park. A. Repeat the question.



98a

Q. What jobs have you had while you were working at 
PiggiePark? A. Curb girl.

Q. And during the course of your employment, have you 
received instructions about who to serve and who not to 
serve? A. Yes, sir.

Q. Do you, as a condition of your employment, are you 
required to serve any particular person? A. No, sir.

Q. Who have you been instructed to serve and not in­
structed— A. We are not allowed to serve interstate 
travelers.

Q. Have you ever refused service to interstate travelers?
— 193—

A. Yes, sir, I have.
Q. How do you determine if a person is interstate? A. 

If we don’t catch them before I wait until I go out to the 
car. I already have the order and I ask the people are 
they out of state, I say are you living here or visiting. If 
they say visiting, I say we are sorry we are not allowed to 
serve them.

The Court: That is only if you see an out of state 
license?

A. Yes, sir.

The Court: You make no inquiry if it is South 
Carolina license?

A. No, sir.
Q. Now, when a person—do you have any other instruc­

tions about serving people? A. Yes, sir. All colored are 
supposed to come to the side entrance and to the kitchen.

Jemell Richardson—for Defendants—Direct



99a

Q. Would you tell us what the kitchen is! A. The 
kitchen is the part where all the food is prepared.

Q. Does the kitchen in fact occupy the entire building? 
A. Yes, sir, it does.

Q. Then if anyone went in the building on the place, they
— 194—

would enter the kitchen ? A. Right.
Q. And where, what Piggie Park are you employed at? 

A. Piggie Park No. 1, Charleston Highway.
Q. Is that— A. Columbia, South Carolina.
Q. West Columbia, South Carolina? A. Yes, sir.
Q. Have you ever refused service to a colored person? 

A. Yes, sir, I have.
Q. Have you ever refused service to an interstate 

traveler? A. Yes, sir, I have.
Q. Have you ever refused service to anyone else? A. 

Yes, sir, I have.
Q. Would you tell us who they were? A. They were 

people that would come up in the cars with colored people, 
with colored people in the car with them.

Q. You would not serve them? A. No, sir.
Q. Even if they were white? A. Even if they were 

white.
Q. Have you refused service to any other person?

— 195—

The Court: You don’t always follow that practice 
do you? I stopped there several times with my 
chauffeur driving with me, and I been served there 
and he’s colored and I ’m white.

Jemell Richardson—for Defendants—Direct



100a

Q. Have you served— ? A. I never have.

The Court: We both been served without any 
question.

Mr. Ray: You sir, are a United States District 
Judge, and I think maybe we made some exception 
there.

The Court: I don’t think anyone knew that fact.
Mr. R ay: I ’m sure they didn’t.
The Court: Probably if they did, maybe I ’d have 

been a little dubious about eating the food.

Q. Have you ever seen Judge Simons before today? A. 
No, sir, I have not.

Q. Then you never served a car in which he was sitting? 
A. No, sir, I have not.

Q. At least you don’t recollect having done so.

The Court: I don’t know whether to take that as 
a compliment, how do I know she would remember 
me out of hundreds of people she served?

Q. Has there ever been any other people, types of peo-
— 196—

pie, or any other conditions that you refused service? A. 
We usually cater to just family trade.

Q. Have you refused service to any other types of peo­
ple? A. No, sir.

(Counsel approached the bench for a brief con­
ference.)

Jemell Richardson—for Defendants—Direct



101a

Q. Mrs. Richardson, if as a condition of your employ­
ment you were required to serve colored people, would you 
—what would you do ? A. I would quit.

Q. Have you ever in the past done such? A. No, sir, I 
have not.

Q. Have you ever quit a job? A. Yes, sir, I have.
Q. For that reason? A. Yes, sir, I have.
Q. Where? A. I quit F. W. Woolworth and Walgreen 

Drugs.

Jemell Richardson—for Defendants—Direct

The Court: Those establishments haven’t closed 
down because you quit though have they?

A. No, sir, they are still in operation, except Walgreen’s 
they no longer have a fountain.

The Court: At this time I would like to announce 
that we have the honor of having one of distin-

— 197—
guished colleagues from the State of West Virginia 
in the Court with me, Hon. John Fields, U. S. Dis­
trict Court from Charleston, West Virginia. Judge, 
would you stand up please. Sure delighted to have 
you with us. At this time we will take a short recess.

(A brief recess was taken and the hearing re­
convened.)

The Court: You have any cross examination of 
this witness?

Mr. Perry: Just one.



102a

Cross Examination by Mr. Perry :

Q. Young lady, you, in following the customs which you 
outlined a moment ago, you are merely carrying out the 
policies of your employer, aren’t you? A. No, sir, I am 
not.

Q. Well of course, you obviously would not be working 
for them if it were not for the employer’s policy? A. 
That’s right.

Q. So if the employer’s policy were otherwise— A. I 
would discontinue my service.

Q. So it is his policy you are enforcing? A. Yes, sir.

Mr. E ay: Come down.
The Court: Step down.

—198—
Mr. Ray: If your Honor please, I have another 

witness that Avorks for Mr. Bessinger, Jean Lee, and 
by agreement of counsel we would like to stipulate—

The Court: J-e-a-n Lee ?
Mr. Ray: Yes, sir. That her testimony would be 

identical with that of Jemell Richardson, the previ­
ous witness. By stipulation agreement of counsel.

The Court: Do I understand you, Mr. Perry, on 
behalf of plaintiffs agree to stipulate to that?

Mr. Perry: Yes, your Honor.
The Court: You care to have any cross examina­

tion?
Mr. Perry: None is perceived to be necessary.
Mr. Ray: If your Honor please, could I have just 

a second?

Jemell Richardson—for Defendants—Cross



103a

The Court: You need the help of the Marshal?
Mr. Ray: Yes, sir. She’s gone to get him. (Mr. 

Bessinger was absent since the recess.) If your 
Honor please, would it be possible for us to enter 
the Court’s experience at Piggie Park with relation 
to service to the colored driver in the car as part of 
our case?

The Court: Well I don’t think I want to be a wit­
ness in the case.

—199—
Mr. Ray: I was thinking perhaps counsel would 

agree without any questions—
The Court: Well, of course, I am the one that 

gave the order and received the food, but he had on 
a chauffeur’s cap and I assume that might have made 
some difference.

Mr. Ray: Mr. Bessinger, I would like to call as a 
witness.

The Court: Do I understand this is your last wit­
ness?

Mr. Ray: Yes, sir. I don’t anticipate any further 
witness.

L. Maurice Bessinger—for Defendants—Direct

L. M aurice B essinger, called as a witness in his own be­
half, who being first duly sworn, testified as follows:

Direct Examination by Mr. Ray:

Q. Your name is L. Maurice Bessinger? A. Yes, sir.
Q. And are you the majority stockholder and general 

manager of Piggie Park Enterprises? A. Yes.



104a

Q. And you are the defendant, one of the defendants 
named in this case! A. Yes.

— 200—

Q. Where are you from, Mr. Bessinger? A. Columbia.
Q. And how long have you resided in Columbia? A. I 

been living in the Greater Columbia Area since 1955.
Q. How long have you been in business in the Columbia 

area? A. In that same period of time.
Q. And has your business during this period of time 

always been the same type of business? A. Yes, sir.
Q. And by type, what do you mean? A. Well I am a pio­

neer in South Carolina in what I call the drive-in barbecue 
business.

Q. Is that to say there were no barbecue drive-ins before 
you opened up? A. I opened the first place of busines of 
mine in ’53, and at that time in Charleston, and at that time 
I don’t know of any exclusive barbecue drive-in operation 
like I have implemented and ran. As I said, I think I am a 
pioneer in that type business.

Q. Has the business that you run now always been oper­
ated in the same manner? A. Yes, sir. Of course we try 
to improve.

— 201—

Q. And by improve— A. But the basic operation is the 
same that I invisioned when I opened up in ’53.

Q. And in so far as the drive-ins are concerned, Mr. Bes­
singer, were they—did you have any purpose in mind when 
you opened them up, or when you— ? A. Yes, sir.

Q. Developed the business? A. Well I used to be in

L. Maurice Bessingcr—for Defendants—Direct



105a

business with my father. I used to work for my father, he 
ran a general restaurant.

Q. By general restaurant you mean what? A. I mean 
offering dining room facilities, facilities that encourage eat­
ing on the premises and making it comfortable for on the 
premises eating. And then after going into the service and 
coming out, as I said, I invisioned a new type of food serv­
ice industry, and I so set out to promote this type of busi­
ness which calls for exclusive driving operation more or 
less, and the purpose of this is to make a greater profit and 
do a greater sales and make a greater profit whenever you 
can turn over your customers much faster in drive-in oper­
ation.

Q. How is your drive-in operation designed to accom­
plish that? A. First of all you start with a basic building, 
which is for all practical purposes, it hardly has any parti-

— 202—

tions, it’s one building with four walls, and it is one big 
kitchen. The entire building is a big kitchen, and then you 
try to have ample parking stations outside for your cus­
tomers to drive up and get their orders as quickly as you 
can. The whole thing is based on speed and carry out.

Q. And what implements to carry out business do you 
use, if any? A. I don’t exactly understand.

Q. How do you implement or accomplish the carry out 
business? A. Well we have this electronic ordering serv­
ice, we had this about three years. This in itself helps to 
speed up service because of the increasing labor problem 
in our type business. The customer drives up, he pushes

L. Maurice Bessinger—for Defendants—Direct



106a

the button he orders, and when the hostess carries the order 
out and everything is on paper too.

Q. Is it ready to go? A. Yes, it is ready to go, all orders 
are ready to go when they go outside the building. The girl 
hands the order to the customer, she collects for it, she tells 
them thank you, sir, and—

Q. Does she leave a tray with them? A. No she does not 
leave a tray.

Q. Does she return to the automobile to see how they are
— 2 0 3 -

getting along? A. No she does not return to the automo­
bile. As far as she is concerned she has her money. In the 
event the customer wants to stay and eat his food and 
wants something else, he of course pushes the button again.

Q. Would you prefer that a customer stay and eat? A. 
No.

Q. How would this affect your business? A. No, we try 
to encourage customers picking up and going because that 
parking space is valuable and we don’t serve other things. 
We don’t serve some things that would tend to keep the cus­
tomer on the lot longer. We cater to the family type people 
that would come in and get this good food and go. We don’t 
cater to teenagers. We ran this experiment on selling beer, 
but we found you can’t get the teenage business and family, 
you got to take your pick on that. So all that, what I am 
saying is means we try to encourage the customers to come 
place their order and get on as fast as they can make room.

The Court: You don’t have any signs asking peo­
ple to move on as soon as they been served?

L. Maurice Bessinger—for Defendants—Direct

A. No, sir.



107a

The Court: The waitresses don’t suggest that 
either do they!

A. Oh no, sir. We don’t do that, but we try to make it con­
venient for them to leave the minute they get their order.

— 204—
The Court: As soon as you get the money you’re 

ready for them to go?

A. Yes, sir. We are as a matter of fact.
Q. In that connection is there any music furnished at 

your drive-ins? A. No, sir. We don’t furnish any music 
for the simple reason that it has a tendency to make cus­
tomers stay longer and, of course, we discourage that.

Q. Have you experimented with this type of thing in your 
restaurant business? A. Well I been in the restaurant 
business for twenty-six years. I owned my own restaurant 
since 1953, own drive-in barbecue operation. I was in the 
restaurant business with my father, then I opened this spe­
cial drive-in barbecue operation in ’53 and that’s been what 
—thirteen years.

Q. Did you have music when you opened that one? A. 
No, sir.

Q. Did you sell beer when you opened that one? A. The 
first one?

Q. Yes, sir. A. No, sir.
Q. The beer was an experiment that lasted how long? 

A. I think it lasted about a year or a year and a half. It 
was a complete flop.

L. Maurice Bessinger—for Defendants—Direct



108a

— 205—

Q. When your food is served then it is served in what 
type of utensils at the drive-ins? A. Well it is put on 
paper.

Q. Put on paper, you mean what? A. Well I mean we 
have wliat you call a wax paper that we put the sandwich 
on, if they want a barbecue plate, it is put on a paper plate, 
carry out plate.

Q. Is it designed for what is it designed, that type of 
thing designed with reference to your business? A. The 
paper?

Q. Yes. A. It is designed for them to carry home. I 
mean the paper itself is designed for them to eat up the 
road, back at the office, carry back home, or what have you. 
I mean that is the reason—

The Court: Don’t you serve, or do you serve cloth 
napkins with some of your orders ?

A. With some of them.

The Court: You don’t expect your customer to 
ride off with the cloth napkins?

A. We have a stainless steel stand on the telatray, and if 
they leave, why the girls bring the napkins back.

The Court: The point I am making, when you use 
cloth napkins in your service, you expect people to 
stay there and finish eating before they leave, do you

— 206—

not, because if not why they couldn’t make very good 
use of the napkins unless they took them with them.

L. Maurice Bessinger—for Defendants—Direct



109a

A. As a matter of fact, your Honor, this is another trade 
secret, but we don’t mind them carrying the napkins home 
because they think they are getting more than they paid 
for.

L. Maurice Bessinger—for Defendants—Direct

The Court: Well I have never taken none of your 
napkins home, but your cloth napkins if you’re say­
ing I ’m supposed to take it, I will do that next time.

A. I am not saying it is a promotional gimmick.

The Court: In other words you don’t object to 
someone taking them?

A. No, sir.

The Court: You wouldn’t consider someone had 
stolen something from you if they took a cloth 
napkin ?

A. No, sir. We certainly don’t, we get them at such a rea­
sonable price. It is promotional, the customer thinks he got 
more than his money’s worth, and he comes back more 
often.

The Court: He might have a guilty conscience if 
he has taken something of value from you.

A. Our experience with the public these days and times
— 207—

the guilty conscience doesn’t enter into the picture.



110a

The Court: You think everybody has a little lar­
ceny in his heart then ?

A. It looks that way.
Q. Mr. Bessinger, do you have any established policy 

that you pass down with reference to interstate, to your 
people working for you, with reference to interstate 
travelers? A. I am sorry?

Q. Do you have any policy with reference to interstate 
travelers that you pass down to your employees? A. Yes, 
sir, we do.

The Court: Excuse me just a moment. All right, 
you may proceed.

Q. What is that policy? A. Well the policy is that we 
do not serve interstate travelers, and we have—we go to 
great lengths to carry this out.

Q. By great lengths, what do you mean? A. First of all 
we put a large sign in the front of the building, which is 
very visible to all people that come into the lot. I would say 
99% of every person that comes into the premises, unless 
lie’s hard of seeing—difficulty in him seeing, he would see 
this sign. And that is the number one. Of course 95% of 
interstate travelers who would happen to come into the

- 2 0 8 -
premises after seeing this sign, they don’t question at all, 
they back up and drive right on. Sometimes not even 
stopped when they see the sign they continue driving, we 
noticed that. And of course, Ave have written instructions 
to the managers, which they in turn give these instructions

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111a

to all employees that every time an out of state tag is seen 
on the premises, or seen approaching the premises, they 
are asked the question do they reside in South Carolina, 
or are they passing through. And if they don’t reside in 
South Carolina, they are told we are sorry but we do not 
serve interstate travelers. So this is policed as much as 
humanly possible.

Q. What installation is that, I hand you Defendants’ Ex­
hibit D? A. That is one of our best stores.

Q. Where is it located? A. Piggie Park, Charleston 
Highway, West Columbia.

Q. How many of those signs, we do not serve interstate 
travelers, are located on those premises? A. How many 
signs are located on this premises?

Q. Yes, that particular place. A. One large sign.
Q. Is there any painted on the window? A. It is not 

painted on the window, it is a cardboard type of thing taped 
to the window.

— 209—
Q. That one, is that the sign you referring to? A. Yes, 

sir. That is a sign in itself, that is taped to the window.

The Court: Do you have that one sign on that 
establishment, or at that establishment, do you have 
any other sign except the one in the window there?

A. No, sir. That’s the only sign that I think specifically 
says those exact words that I can remember. I mean that is 
our major sign that says we do not serve interstate travel­
ers. No, sir, I don’t know of any other sign that says that.

Q. How about that one? A. That is the location on the 
Sumter Highway, has the same type of sign.

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112a

L. Maurice Bessinger—for Defendants—Direct 

The Court: What exhibit is that?

Q. That is—I beg your pardon—that is Defendants’ Ex­
hibit B. How many entrances are there to that place of 
business? A. One.

Q. And is the same sign appears there? A. Yes, sir, at 
the door.

Q. Right adjacent to the door? A. Yes, sir.
Q. Is that the only door on the premises? A. That is

— 210—

the only door.
Q. And that location, Defendants’ Exhibit A is where? 

A. That is on 1430 Main Street in Columbia.
Q. How long have these signs been there, Mr. Bessinger? 

A. Well let’s see, since July 2, 1964, immediately there­
after. In other words, I think it took us a couple of days 
there to get the signs painted. I don’t exactly remember 
the day, but immediately thereafter July 2.

Q. Of course does the same thing apply to Defendants’ 
Exhibit C? A. Yes, sir.

Q. On anywhere on your advertisements do you adver­
tise for people to come in and dine with you in that sense? 
A. No, sir. We run a drive-in pickup. We call it barbecue 
drive-in specialty, which is primarily a pickup. Now some 
drive-ins do have restaurants inside, but we do not.

Q. Do you have any facilities inside of your kitchen 
where people could sit down and eat? A. Well we have 
two of the locations, Sumter and Two Knots Highway we 
have two or three small tables in there with a couple of 
chairs at each table that sometimes a customer will drive 
up and doesn’t want to tip the curb girl. We just recently



113a

— 211—

done this. They come inside to put in an order, and the 
table is there for them to sit and wait until the order is 
prepared and nine times out of ten and 99 out of 100 the 
order is to go and they get up and leave.

The Court: You say they come in because they 
don’t want to tip ?

A. I think that is the general consensus that I can deter­
mine.

Q. How long have you had your place of business at 1430 
Main Street, Mr. Bessinger? A. We opened that in, I 
think, it was September 1, 1963, thereabouts. I would say 
around the 1st of September 1963, that is 1430 Main.

Q. 1430 Main. You had the drive-ins prior to that? A. 
Yes, sir.

Q. Mr. Bessinger, when you opened 1430 Main Street, 
tell us how this business is operated and how the facilities 
are fixed in there? A. Well it is very small.

Q. Is it wide? A. No, sir, it is very narrow.
Q. How wide is it? A. Let’s see, I think it is about 

eighteen feet wide. Fourteen or eighteen feet wide.
— 212—

Q. And how long or deep? A. It is rather long. It is 
a hundred feet long, I think, something like that.

Q. How do you have tables in there? A. Yes, we do 
have tables in there.

Q. How are they arranged? A. The tables?
Q. Yes. A. Well little small tables with chairs.

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114a

Q. Are they down one side? A. Yes, sir. Down one 
side of the wall, and then of course a couple of tables in 
the back that are regular round tables.

Q. Do you have any tables, or have a balcony facility in 
there? A. Yes, sir, a little balcony upstairs.

Q. How many will that seat? A. The balcony will seat 
about eighteen or twenty.

Q. How many will you seat downstairs? A. About 
thirty-five or forty.

Q. Now, does this business downtown, where is it, is 
it in a business district or residential? A. It is in the 
second busiest downtown shopping street in Columbia. The 
1500 block is, I think by the Chamber of Commerce re­
ports, the busiest, and we are on the next busiest shopping

- 2 1 3 -
area downtown Columbia.

The Court: Is that north or south of the State 
House?

A. That is north of the State house.

The Court: How many blocks up from the State 
House?

A. It is three blocks.

The Court: Up there in the area of the Barringer 
Building?

A. Yes, sir. Eight up from the Barringer Building, sev­
eral doors up from the Barringer Building.

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115a

Q. When you opened this business, you say you opened 
it in ’63, did you have any purpose in mind in opening it? 
A. Yes, sir, we had.

Q. Did you have any business benefit by opening it? A. 
Well of course all business ventures have what you might 
call an ulterior motive of profit. At that time with the 
situation being as they were—

Q. What you mean by that, sir? A. Well at that time 
there was a lot of demonstrations in Columbia, the preced­
ing several months prior to us going into this business, and 
after—and these of course results of the demonstrations 
was almost everything on Main Street integrated.

Q. You mean everything on Main Street? A. I am talk-
— 214—

ing about food establishments on Main Street.
Q. Do you have reference to restaurants or counters? 

A. Lunch counters primarily there because that’s what it 
is in that area.

Q. And this affected the opening of this business? A. 
Yes, sir. I had a profit motive in that. I visualized there 
were things being as they were that there should be a nice 
place downtown for the workers, office workers and store 
workers and perhaps other shoppers who were white, who 
wanted to eat in non integrated establishment, and I ven­
tured some $35,000 to $40,000 with that profit motive in 
mind.

Q. Based on the fact you would operate it segregated? 
A. Yes, sir, absolutely.

Q. At that time when you opened this business, did— 
was there any law to your knowledge in existence that 
would require you to integrate? A. No, sir. As a matter

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116a

of fact there was at that time quite a bit, this was in 1963, 
summer of ’63, and there was quite a bit of discussion about 
a law in the President Kennedy Administration.

The Court: Let me see if I understand that ques­
tion. You asked him back in ’63 if there was any 
law that required him to integrate?

—215—
Mr. Ray: Yes, sir.
The Court: I thought it was your position even 

the Civil Rights of ’64 didn’t require him to inte­
grate.

Mr. Ray: If he doesn’t come under the terms. 
If he’s under it, he’s under i t ; if he is not, we main­
tain he has the right to keep a segregated business, 
and I would assume there are—

The Court: I didn’t understand. You said there 
wasn’t any law in ’63 that required him to integrate. 
I understand in your position that the Civil Rights 
Act of 1964 didn’t require it.

Mr. Ray: What I was getting at, that as a busi­
ness interest, profit motive, from that standpoint.

Q. Has this been a successful business, Mr. Bessinger? 
A. We were doing real good business there when we first 
opened, very good business.

Q. Now, have you in all your business operations, have 
you had the occasion to run checks on what type of busi­
ness and things of that nature—is that a practice among 
restaurant owners, or anybody that sells food like that? 
A. Well, of course, one must know his business and one

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117a

must know who he is serving in order to be successful in
—2 1 6 -

business, and in other words he must know his customers. 
If he doesn’t know the likes and dislikes and everything 
about his customers in general, this would, in my opinion, 
make him a poor businessman.

Q. Do you have any way of determining what kind of 
business you got? A. Absolutely. I mean over the years 
I have been very close to my business. I am one of the 
real conscientious, seven-day-a-week business people, and 
I enjoy my type of business. I make it a point to know 
what my customers like, and their dislikes, and I do this 
through personal interviews with my customers. I survey 
my customers from location to location continuously along 
those lines.

Q. And as a result of this has it affected your business 
operation, has it caused you to operate in a particular 
fashion? A. Why absolutely. What I mean, as I said, I 
know what my customers want, and I try to give them 
what they want, and that is atmosphere, might be quality 
of food, in general business operations. I know what they 
want; that’s what I try to give them. Of course, every 
decision is based on the majority number of customers that 
you serve. In other words, that is the figure that any 
businessman—in other words when he would establish a 
price on an item, he would determine whether this would

—217—
be received well by if this was received well by 90% of 
his customers, and he felt like he had to do this, he would 
do it. But if it was not received Avell by maybe 25% of his

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118a

customers, he would hesitate to raise the price. That is 
the type of thing I am talking about.

Q. What about with reference to integration and segre­
gation? A. Of course that is a major thing on people’s 
mind and has been for several years, and in my surveys 
I have found out I would lose quite a few customers had 
I operated on an integrated basis.

Q. By quite a few, have you determined an overall 
amount? A. Yes, I think if I would have integrated earlier 
or do integrate any time in the future, on the basis of 
what I can determine from my customers, my business may 
be cut 50%.

Q. You say may be cut 50% ? A. Approximately 50%; 
it could go either way.

Q. How much either way do you feel? A. Well, I would 
say this is an estimate, I mean a guess on what I feel about 
these surveys.

Q. We don’t want a guess, Mr. Bessinger. A. I ’d say 
my business will be cut 50% if I am forced to integrate.

— 218—
Q. What about your employees, have you discussed the 

matter with them? A. Oh yes I have, and this would 
drastically affect my employee structure. You know em­
ployees are hard to get and especially the drive-in business, 
which is what I operate. The curb girl part is extremely 
hard to get good ones. We are very fortunate to have 
quite' a few good ones, and I have talked to quite a bit of 
the girls on this type of thing, and I would say I ’d lose 90% 
of that segment of my labor force if I am forced to inte­
grate.

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119a

Q. With reference to other restaurants in Columbia, do 
you know of your own knowledge whether integration has 
affected that particular phase of their business? A. Well, 
yes I do. You make it a point to know how your competi­
tors are doing in business, and I have noticed whereas—

Mr. Perry: Your Honor, I submit this is specula­
tive. We object on the ground this is irrelevant, and 
that it is based upon hearsay testimony.

The Court: I think he’s gone about far enough. 
I think it would be purely hearsay and I seriously 
doubt the relevancy.

Mr. Ray: If your Honor please, I am not going 
to belabor the thing. I asked him of his own knowl­
edge if he knew this. And the relevancy, of course,

- 2 1 9 -
goes to a basic property right that they maintain 
the man has in his business; to overrule the testi­
mony would allow, of course, no evidence in on that 
whether you threw it out later on or not.

The Court: Well, are you still on the point of 
constitutionality of the Civil Rights Act?

Mr. Ray: Yes, sir, on that.
The Court: Well, it is my conception that Katzen- 

bach v. McClung, which was cited by the United 
States Supreme Court, which is the particular sec­
tion which this action was based, was constitutional 
under commerce law; and also the case of Willis v. 
Picrick Restaurant, which the three Judge court 
over at Atlanta had the same question before it, the 
constitutionality of 201 b(2) I believe it is, and that

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120a

court held that provision to be constitutional. So 
that is what I wanted to ask you if this line of tes­
timony is in support of your contention that that 
provision under which this action has been brought 
of the Civil Rights Act of 1964 is unconstitutional. 
Is that the purpose of this line of testimony?

Mr. Ray: In that connection, your Honor, we 
have taken the position, or are taking the position, 
that there was no affirmative evidence introduced

— 220—

along those lines, and the court itself referred to a 
general look at it, and said it is speculative, con­
jectural. But when a man has gone in and investi­
gated his own business and asked questions about 
it, and from that—

The Court: Let’s move along. I will let you go 
into this, but I just don’t want to dwell on it too 
long because I doubt very seriously it is relevant.

Mr. Ray: Well we feel too in that connection the 
right to contract with these employees is a property 
right of his that is involved in the matter also; and 
the question Avas of his OAvn knoAvledge had it af­
fected the employees at other restaurants, or drive- 
ins in Columbia rather.

The Court: I thought you asked him about the 
volume of business.

Mr. R ay: Of course I had gotten off that I thought.
The Court: All right, go ahead.

Q. Would integration, or has integration affected the 
employees at any of the other drive-ins in Columbia? A. 
Yes, sir.

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121a

Q. What do you mean by that! A. Well I have noticed 
that some other establishments in Columbia that did in-

— 221—

tegrate, that were using white curb hostesses, or girls, they 
lost these girls, and they had to convert to white and colored 
boys, and mostly I think from my observation colored boys 
as the curbhops. And as a matter of fact, I don’t remember 
the exact names now, but I think some of those girls came 
to work for me that they lost.

Q. Have you made any effort to tailor where you buy 
your products, Mr. Bessinger! A. Yes, sir, we certainly 
have. We have gone to quite a bit of time and effort in this.

Q. Do you intend to further do that! A. Yes, sir, we 
will continue analyzing the whats and wherefores of where 
things are processed and grown, and this has the dual in­
terest as far as I can see my part, not only helps South 
Carolina to buy things grown and processed in South Caro­
lina, but according to the Bill it saves my property rights.

Q. Prior to 1964 did you, July 2, 1964, did you—was 
your business serving interstate travelers! A. Prior to 
July 2, 1964!

Q. Yes, when the Act was passed. A. Were we serving 
interstate travelers! Well we served maybe a very small 
number because my business is not designed to serve in­
terstate travelers anyway. My business is set up to serve

- 222-

local people. You take people from New York don’t eat 
barbecue—at least I don’t think many of them do. My type 
of barbecue is known to be popular in central South Caro­
lina. You go now in North Carolina you get an entirely

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122a

different type of barbecue. You go to Georgia, you get 
an entirely different type of barbecue. I have to rely on 
the likes of the people in central South Carolina, and they 
like my barbecue by the evidence of my sales. And that is 
—I am catering to those people because if I catered to in­
terstate travelers I ’d go broke in the barbecue business 
because there’s so many different variations of barbecue. 
The sauce varies from sometimes from county to county 
barbecue sauce will vary. In North Carolina they don’t 
have a sauce, they have a vinegar d ip ; Georgia they have 
a red sauce; I have a yellow sauce.

The Court: How you spell that?

A. R-e-d. Some people from central South Carolina have 
this taste for the type sauce I have and I thank the good 
Lord for it.

Q. Mr. Bessinger, with reference to the total volume of 
your business, do you know how much of your business 
is carry out, or take away business from your drive-ins? 
A. Yes. Of course, as I said, we try to encourage this to 
the maximum degree. This would average 50%. Carry out 
would average 50%. I say average, because in the real

- 2 2 3 -
cold temperature it would jump up to eighty to ninety per 
cent; in the real hot temperature it would also jump up to 
eighty to ninety per cent. So it will have an overall per­
centage of my business that I know for a fact is carried back 
to the office or carried back home or carried on a picnic, 
what have you.

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123a

Q. Do you in fact have facilities for bulk carrying out? 
A. Yes we sell a lot of barbecue by the pound. We sell a 
lot of quarts of hash by the quart, and slaw by the quarts, 
and rice by the quarts. We built up quite a big business on 
that.

Q. Carry off? A. Oh absolutely, and July 4th we sell 
several tons of barbecue.

Q. How about at the sandwich shop? A. The sandwich 
shop we offer three minute service there, and this en­
courages, I notice this being up there quite a bit, I usually 
run the cash register there at the lunch when I am not 
detained elsewhere. I notice these girls in these—we have 
a lot of office workers come in there, 80% of my customers 
are ladies, and they come in and they will get something 
quick in a bag to go and they have a thirty minute lunch 
hour or forty-five minute lunch hour, some may have an 
hour, they come in there and get something real quick

— 224—
wrapped to go and then they will spend the other forty-five 
minutes shopping on Main Street. You see they eat this 
quick when they get back to the office.

Q. What time of the day is the bulk of your business and 
how much of it have you figured, if you have, at the sand­
wich shop on Main Street? A. There we do 90% of our 
business from the hours of 11:00 to 2 :30, what we call the 
lunch hour. We do very little before and very little after.

Q. What hours is the sandwich shop open? A. We open 
at 9 :00 and close at 6 :00 as a rule. Maybe on Friday and 
Saturday night, actually we close with the stores. I f the 
stores are staying open late, we stay open late.

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1.24a

Q. All right, sir. A. We close there on Sunday too.
Q. Do all of your drive-ins have a telatronic tray device ? 

A. Teletray service, electronic ordering service, yes, the 
drive-ins do have this.

Q. And why was that put in? A. Well that was put in to 
speed service, and to help combat the labor problem. What 
I mean is, I guess, suppose good curb hostesses are one of 
the hardest type of labor to find, and you operate with half

—225—
as many at least half as many curb hostesses with this 
system.

Q. Then the design of your business, and the character of 
the operation is vital to its success ? A. Oh yes.

The Court: I would assume that would apply to 
any business.

Mr. Ray: Well your honor, that’s what we main­
tain, it is a valuable property right. I don’t see how 
it can be escaped—not you sir, but decisions that 
indicated that way.

Q. Mr. Bessinger, what denomination are you? A. 
Baptist.

Q. How long have you been a Baptist? A. Well all 
my life. I was Baptized I suppose—

The Court: Does that have any relevancy here?
Mr. Ray: If your Honor please, we are going to 

the defense on religious belief unless you’re going to 
stop us.

L. Maurice Bessinger—for Defendants—Direct



125a

The Court: You have any authority that would be 
a defense?

Mr. Ray: Well, your Honor, I think the Act itself, 
including all of the Acts they passed recently, they 
have granted people the right to enter businesses on 
the basis of religion, without any qualification as to 
religion; also put it in as a requirement on hiring

—226—
and firing people. I think they have done that in 
voting; and I think that the entire trend, they have 
injected it in fact into this Act in that they have 
said on the basis of religion you couldn’t refuse to 
serve them food. Then they have enacted a law 
basing his service and making it dependent upon the 
fact that a person has a religion that comes into his 
place of business, the criteria in there.

The Court: Well you may have some knowledge 
of some cases that I don’t have, and I will just let 
it in for whatever it may be worth on your state­
ment that it may possibly be connected up as a de­
fense to this case, and of course I got to see more 
than I have seen up to now to feel that it would be 
a defense.

Mr. Ray: All right, sir. Well that is what I was—
The Court: All right, go ahead.

Q. Mr. Bessinger, are you a Christian? A. Yes.
Q. Or do you profess Christianity? A. Yes.
Q. And what is your Christian faith based upon? A. 

My Christian faith is based upon the old and new Testa­
ments of the Bible.

L. Maurice Bessinger—for Defendants—Direct



126a

—227—
Q. And do you believe in this Bible infallibly? A. I 

believe it to be the infallible word of God.
Q. And is it—in your treatment with the everyday in­

dividual everyday, do you follow this? A. Well I cer­
tainly think I try to. I mean I do it as much as I possibly 
can. What I mean by that, I certainly hope I am living 
that life, that is what your question is.

Q. It is your belief to that effect? A. Absolutely.
Q. Do you have any beliefs concerning segregation of the 

races, is that intwined or intermingled with or part of your 
beliefs as a Christian? A. Yes, sir, that is very much 
part of my belief as a Christian, mixing of the races cer­
tainly is.

Q. By races you refer to what, sir? A. By races, I 
refer to the race as the black race, the white race, and the 
yellow race.

Q. What is the Biblical basis, if any, for such a belief? 
A. Well in the Old Testament God commanded the Hebrews 
not to mix with other peoples and races.

Q. Do you know of any such practice going on in the 
United States under a religion today? A. Wliy yes, I 
think that I know for a fact there is.

—228—
Q. What— A. Sure.
Q. What religion? A. What religion? Well Jewrism—

The Court: You are not talking about inter­
marriage of the races; we are talking about serving-

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races.



127a

Mr. Ray: I got something right here about social 
association of races.

The Court: I just don’t want to belabor the point 
too long. I don’t mind you getting it into the record, 
but let’s not go into all the tenets of the Old Testa­
ment and New Testament and that.

Mr. Ray: I think counsel anticipates a somewhat 
lengthy cross examination. If your Honor please, 
let me ask him another question.

Q. Do you know of any other race of people in this 
country that maintain segregation as a matter of religion? 
A. Yes, I do.

Q. What? A. Well you have the Black Moslem as part 
of their religion they don’t believe in mixing.

Q. How about eating food with other people? A. Eat­
ing food with other people? Yes, they believe in separation 
as far as my conception of it, entire separation.

—229—
Q. All right, sir.

Mr. Ray: You object to the introduction of this?
Mr. Perry: I fail to see the relevancy of it. Of 

course we will have an objection.
Mr. Ray: All right.
The Court: What is it?
Mr. Ray: If your Honor please, it is a newspaper 

clipping.
The Court: Well, I don’t want to see it if it is just 

a newspaper clipping.
Mr. Ray: It is a story on one of our religions.

L. Maurice Bessinger—for Defendants—Direct



128a

Colloquy

The Court: You can get things out of the news­
paper to back up any position you want to take. 
I don’t think—that would be purely hearsay as far 
as this action is concerned, and I don’t want to get 
into that.

Mr. Ray: Would the Court take judicial knowledge 
of the Jewish faith, as encompassing, the Orthodox 
Jewish faith as encompassing the separation of 
races, including integrated and social activity that 
would lead to it.

The Court: I don’t think I would take judicial 
knowledge of that kind of thing because it may 
be well known, but I don’t happen to know about it

—230—
myself.

Mr. Ray: Would it not appear in books of record 
in common knowledge, sir?

The Court: I don’t know whether it would or not. 
I mean you come in here with some newspaper 
clipping, you don’t come up with any official pub­
lication or any expert witness. Now you got a man 
on the stand here that can testify, he’s an expert 
insofar as running the restaurant business. You may 
qualify him as an expert in religious philosophy and 
he may be able to express some opinion, but I won’t 
open the door wide open and let you bring in all 
newspaper clippings.

Mr. Ray: That was just one, your Honor. I don’t 
have any further questions.

The Court: All right.



129a

Mr. Perry: Would you indulge us a moment please, 
your Honor?

The Court: Certainly. (Pause) You have any 
questions of this witness?

Mr. Perry: We have no questions of this witness, 
your Honor.

The Court: All right, you may step down, Mr. 
Bessinger.

Mr. Ray: If your Honor please, that concludes
—231—

our case. We would like to make some motions.
The Court: Like to do what?
Mr. Ray: Like to make some motions.
The Court: What is the nature of your motion?
Mr. R ay: Motions are for directed verdict on the 

thing, and if—
The Court: Just a minute, I want to find out if 

there’s any reply testimony on the part of the plain­
tiff. Anything in reply?

Mr. Perry: Nothing in reply, your Honor.
The Court: All right, you may make your motion.
Mr. Ray: All right, sir. I don’t assume your 

Honor wants to hear me on them at length?
The Court: What’s that, you assume what?
Mr. R ay: I was asking should I assume you want 

to hear me at length, the hour is 12:30, you men­
tioned you wanted to leave to see Judge Fields.

The Court: I am not trying to cut anybody short. 
What I am saying, this is a non jury case. I am 
going to take it under advisement and study it, both 
counsel will have plenty of opportunity to file

Motions for Directed Verdict



130a

briefs and argument, what have you. If you wish to 
make any motions I will be glad for you to make 
them. Be glad for you to make any statement you

- 2 3 2 -
care to make, but I am not going to decide this 
case from the bench. I am going to take it and study 
it because it is the first time I have had a case 
involving the Civil Rights Act of 1964.

Mr. Ray: All right, sir.
The Court: And I am not in a position at this 

time to make a decision from the bench and I want 
the assistance of counsel in trying to arrive at a 
proper decision in this case.

Mr. R ay: All right, sir. For the record then briefly 
I would like to move for verdict for the Defendants 
based first on failure to prove that defendants come 
under the Act by the plaintiff. Secondly, that the 
defendants are not principally engaged in selling 
food for consumption on the premises as required by 
the Act. Thirdly, that a substantial portion of the 
foods that they have served and the products, food 
being the product, they sell have not moved in com­
merce within the meaning of the Act. The evidence 
also is that the defendants do not serve the general 
public as such, but have excluded other than colored 
people and in fact have served colored people, and 
that is not to say they have the full facilities and I 
am not making that argument or any testimony.

—233—
Also for a directed verdict in that the defendant 
is not within Federal control or regulation under the

Motions for Directed Verdict



131a

commerce clause, Section 8, clause 3 for various rea­
sons that will come out in the other defenses. They 
do not affect commerce; they don’t serve a substantial 
portion of food or other products that move in com­
merce ; they don’t serve, or offer to serve, interstate 
travelers; and they otherwise are not within the 
purview of the meaning of the Civil Rights Acts of 
1964, in that the Civil Rights Act of 1964 violates 
their constitutional rights under the Fifth Amend­
ment as to full use and enjoyment of their property; 
and unlawful taking thereof without due process of 
law, and denial of due process of law as defined 
within the defenses applicable to the Fifth Amend­
ment of the Constitution, with particular reference 
to the fact that the words “principal”, and “ substan­
tial” are incapable as so written in the Act of legal 
definition; that it is conceivable that a business would 
not be substantially under the Act, yet be the same 
type of business that the defendant maintains, and 
as to that class of businesses there is an unequal 
treatment for no good distinguishable difference. 
The word substantial itself could mean, even under 
the most recent and only court decision on the matter,

— 234—
one to forty-six per cent. On any given day in the 
United States any man in the restaurant business 
could, at the discretion of the court or determina­
tion at that particular instance, could determine him 
under it or not under it; and for that reason it is 
vague, indefinite, arbitrary, and denies the defen­

Motions for Directed Verdict



132a

dant, and all similarly situated, due process of law 
within the constitutional interpretations that have 
been handed down since the beginning of this coun­
try. Generally that it imposes a type of servitude 
upon the defendants, their servants, agents, or em­
ployees in violation of their rights under the Amend­
ment and tends to encompass all of them. And on 
that point, your Honor, right there I would like 
to mention now it is attempted here to obtain an in­
junction against the defendants and its employees. 
Since it would not mean his employees by name, I 
am assuming that they would have the right to refuse 
service to anyone and leave and quit. I am assuming 
that rather than that they would be subject to some 
court penalty for quitting and leaving this man’s 
place of business.

The Court: Well, of course, that argument pre­
supposes that there is going to be an injunction, 
and I think any injunction that this Court would 
issue would be clear enough that it would be under-

—235—
standable as to the terms and conditions of it.

Mr. Ray: And in that connection, of course, it 
applies to the defendants that the type of involun­
tary servitude within the provision of the Thirteenth 
Amendment would be upon him, and that the Act it­
self violates the freedom of expression of religion 
within the meaning of the First Amendment of the 
Constitution of the United States. And finally, I 
would like to drop back to my fourth defense and 
state further that the taking for public use is with­

Motions for Directed Verdict



133a

out compensation and is a taking prohibited by the 
Constitution and the due process also encompasses a 
denial of the user, that no case has separated private 
property from public property and that historically 
has been a distinction in our jurisprudence of judicial 
significance. Without adherence, or continued ad­
herence, this man and others similarly situated would 
be put in a situation of jeopardy under the Constitu­
tion and under the due process Amendment. Thank 
you, your Honor.

The Court: I let the record show you made these 
motions for directed verdict in favor of the defen­
dant upon the various grounds as stated. As I 
said before, I am not going to rule on the merits

— 236—
of this case at this time until I have had an op­
portunity to study the record and also the applicable 
law involved. In that connection I am going to 
direct that counsel for each party file with the 
Clerk of this Court on or before May 1st, 1966 a 
proposed Order setting forth findings of fact and 
conclusions of law in reference to this case, which 
may be supplemented or supported by any briefs 
and argument, written briefs and arguments which 
either party cares to present to the court.

Mr. Ray: Yes, sir. That is on or before May 
first.

Mr. Perry: I understand, your Honor. May I 
make inquiry from Mrs. Cole concerning when she 
can possibly have the transcript.

(The reporter informed the court it would prob­
ably be the latter part of April.)

Motions for Directed Verdict



134a

A d jo u rn m en t

Ihe Court: May 15 in view of the reporter’s state­
ment that it would be towards the latter part of 
April. 1 will expect these proposed Orders and any 
argument and brief to be filed with this Clerk on or 
before May 15, 1966. All right, with that, this 
Court is now adjourned.



135a

(Filed: July 27,1966)

This suit was commenced December 18, 1964 by plain­
tiffs, who are Negro citizens and residents of South Caro­
lina and of the United States, on behalf of themselves and 
others similarly situated, pursuant to Eule 23(a)(3) of the 
Federal Eules of Civil Procedure. Jurisdiction of this 
court is expressly conferred by Title II, Section 207 of the 
Civil Eights Act of 1964, 42 U. S. C. Section 2000a-6.1

The gravamen of plaintiffs’ complaint is that corporate 
defendant operates several restaurants in Columbia and 
elsewhere in South Carolina which are places of public ac­
commodation within the purview of the Civil Eights Act 
of 1964; and that defendant violated said Act by denying 
service to plaintiffs at certain of its restaurants on July 
3rd and August 12th, 1964 solely upon the ground that 
they were Negroes. The complaint further specifically al­

1 “§ 2000a -6 . J u risd iction ; exhaustion  o f  oth er r em ed ies ; exclu ­
siveness o f  rem ed ies ; assertion o f  rights hosed on  oth er F ed era l or  
S ta te  laws and pu rsu an t o f  rem edies fo r  en forcem en t o f  such rights

“(a) The district courts of the United States shall have juris­
diction of proceedings instituted pursuant to this subchapter and 
shall exercise the same without regard to whether the aggrieved 
party shall have exhausted any administrative or other remedies 
that may be provided by law.

“(b) The remedies provided in this subchapter shall be the ex­
clusive means of enforcing the rights based on this subchapter, 
but nothing in this subchapter shall preclude any individual or 
any State or local agency from asserting any right based on any 
other Federal or State law not inconsistent with this subchapter, 
including any statute or ordinance requiring nondiscrimination 
in public establishments or accommodations, or from pursuing any 
remedy, civil or criminal, which may be available for the vindi­
cation or enforcement of such right. Pub. L. 88-352, Title II, 
§ 207, July 2, 1964, 78 Stat. 245.”

Opinion and Order of the District Court



136a

leges that in their restaurants defendants serve and offer 
to serve interstate travelers; that a substantial portion of 
the goods which they serve move in interstate commerce; 
and that defendants’ operations affect commerce between 
the states. Plaintiffs ask that defendants be temporarily 
and permanently enjoined from discriminating against 
plaintiffs and the class of persons they represent upon the 
ground of race, color, religion and national origin.

Defendants admit jurisdiction of the court under Section 
2000a-6, supra, generally deny the material allegations of 
plaintiffs’ complaint, and specifically deny the allegations 
of the complaint which allege that their establishments are 
places of public accommodation as defined in the Civil 
Rights Act of 1964. Although defendants concede that they 
cater to white trade only and refuse to serve members of 
the Negro race at their restaurants for on-the-premises 
consumption of food, they stoutly maintain that they do 
not come within the coverage of Section 2000a(b)(2) and 
(c)(2 ) of the Act, in fra  note 2, because (1) they do not 
serve the public as required by the Act; (2) they are not 
principally engaged in selling food for consumption on the 
premises; (3) they do not serve or offer to serve interstate 
travelers; and (4) they do not serve food, a substantial 
portion of which has moved in commerce.

Defendants further contend that all foodstuffs served by 
them which are processed in this state, including cattle and 
hogs slaughtered in South Carolina, although shipped in 
commerce from another State to this State, cannot be con­
sidered as moving in interstate commerce under the Act; 
that the Act denies defendants “ due process of law and/or 
equal protection of the law” as guaranteed by the Four­

Opinion and Order of the District Court



137a

teenth Amendment; that the phrase “ substantial portion of 
the food which it serves . . . has moved in commerce” is 
so vague and indefinite as to be impossible to determine 
whether a business operation comes within the Act; and 
further, that the Act violates defendants’ “ property right 
and right of liberty protected by the Fifth Amendment.”

Defendant Bessinger further contends that the Act vio­
lates his freedom of religion under the First Amendment 
“ since his religous beliefs compel him to oppose any in­
tegration of the races whatever.”

The constitutionality of the public accommodations sec­
tion, Title II of the Civil Rights Act of 1964, 42 U. S. C. 
Section 2000a, has been fully considered and determined by 
the United States Supreme Court in A tla nta  M o te l v. U nited  
S ta tes, et al., 379 U. S. 241 (1964); K a tzen ba ch  v. M cC lu n g , 
379 U. S. 294 (1964); see also W illis  v. P ickrick R estau ran t, 
231 F. Supp. 396 (1964), appeal dismissed, 382 U. S. 18 
(1965).

The constitutional questions posed by defendants herein 
were before the Supreme Court in M cC lu n g  and A tla nta  
M o te l, supra, and were decided adversely to defendant’s 
contentions. Consequently, defendant’s defenses founded 
upon the due process and equal protection clauses of the 
Fourteenth Amendment, the Fifth Amendment, and the 
Commerce Clause of the Constitution are found by the 
court to be without merit in view of the M cC lu n g  and A t ­

lanta M o te l cases, supra. It is noted that in M cC lu n g, 

A tla nta  M o te l  and Pickrick R estau ran t the motel and res­
taurants involved were admittedly places of public accom­
modation under the Act, there being no factual issue as to 
whether they came within the purview of same. Neither

Opinion and Order of the District Court



138a

was any question raised that the restaurants involved 
therein were not principally engaged in selling food for 
consumption on the premises. The sole consideration be­
fore the lower courts and the Supreme Court in those cases 
was the question of the constitutionality of the public ac­
commodations provisions of the Act (Section 2000a).

Neither is the court impressed by defendant Bessinger’s 
contention that the judicial enforcement of the public ac­
commodations provisions of the Civil Rights Act of 1964 
upon which this suit is predicated violates the free exercise 
of his religious beliefs in contravention of the First Amend­
ment to the Constitution. It is unquestioned that the First 
Amendment prohibits compulsion by law of any creed or 
the practice of any form of religion, but it also safeguards 
the free exercise of one’s chosen religion. E n g e l v. V ita le, 
370 U. S. 421 (1962). The free exercise of one’s beliefs, 
however, as distinguished from the absolute right to a be­
lief, is subject to regulation when religious acts require ac­
commodation to society. U nited  S ta tes  v. Ballard, 322 IT. S. 
78 (1944) (Mails to defraud); R eyn o ld s  v. U nited  S ta tes, 
98 U. S. 145 (1878) (polygamy conviction); V ince v. C o m ­

m onw ealth o f  M a ssa ch u setts , 321 U. S. 158 (1943) (minor 
in company of ward distributing religious literature in vio­
lation of statute). Undoubtedly defendant Bessinger has a 
constitutional right to espouse the religious beliefs of his 
own choosing, however, he does not have the absolute right 
to exercise and practice such beliefs in utter disregard of 
the clear constitutional rights of other citizens. This court 
refuses to lend credence or support to his position that he 
has a constitutional right to refuse to serve members of 
the Negro race in his business establishments upon the

Opinion and Order of the District Court



139a

ground that to do so would violate his sacred religious 
beliefs.

The sole question for determination under the circum­
stances of instant case is whether any or all of defendants’ 
eating establishments are places of public accommodation 
within the meaning and purview of Section 201 of Title II 
of the Civil Rights Act of 1964 (Section 2000a).2 In arriv­
ing at this determination the court is primarily concerned

2 Ҥ 2000a . P roh ibition  against discrim ination  or segregation  in 
places o f  public accom m odation— E q u a l access

“(a) All persons shall be entitled to the full and equal enjoy­
ment of the goods, services, facilities, privileges, advantages, and 
accommodations of any place of public accommodation, as defined 
in this section, without discrimination or segregation on the ground 
of race, color, religion, or national origin.

“ E sta blish m en ts affecting interstate com m erce or su p p orted  in 
th eir activities b y  S ta te  action as places o f  pu blic a ccom m od a tion ; 
lo d g in g s ; facilities p rin cip a lly  engaged in selling fo o d  fo r  con ­
su m p tion  on  the p rem ises;  gasoline sta tio n s; places o f  exhibition  
or en terta in m en t;  oth er covered  establishm ents

“(b) Each of the following establishments which serves the pub­
lic is a place of public accommodation within the meaning of this 
subchapter if its operations affect commerce, or if discrimination 
or segregation by it is supported by State action:

“ ( 1 ) . . .
“(2) any restaurant, cafeteria, lunchroom, lunch counter, soda 

fountain, or other facility, principally engaged in selling food for 
consumption on the premises, including, but not limited to, any 
such facility located on the premises of any retail establishment; 
or any gasoline station;

“(3) . . . ; and 
“(4) . . .
“(c) The operations of an establishment affect commerce within 

the meaning of this subchapter if (1) . . .  (2) in the case of an 
establishment described in paragraph (2) of subsection (b) of 
this section, it serves or offers to serve interstate travelers or a 
substantial portion of the food which it serves, or gasoline or 
other products which it sells, has moved in commerce; . . . ”

Opinion and Order of the District Court



140a

with the following factual and legal questions, which will 
be considered in inverse order hereinafter: (1) Is cor­
porate defendant’s establishments, or any of them, “ princi­
pally engaged in selling food for consumption on the prem­
ises;” (2) Does said defendant at its establishments serve 
or offer “ to serve interstate tra v e lersa n d  (3) has “ a sub­
stantial portion of the food which it serves, . . .  or other 
products which it sells . . . moved in commerce” ?

Should the court’s answer to question # 1  be in the af­
firmative, and either questions # 2  or # 3  in the alternative 
in the affirmative, then such of defendants’ establishments 
are places of public accommodation within the purview of 
the Act, and plaintiffs are entitled to the requested relief 
as to these establishments.

The cause was heard by the court on April 4th and 5th, 
1966. Subsequently excellent briefs and arguments have 
been filed by counsel for the parties. After a careful con­
sideration of the evidence and the law and pursuant to 
Rule 52(a) of Federal Rules of Civil Procedure the court 
makes its findings of fact and conclusions of law.

F indings of F act

1. Defendant Piggie Park Enterprises, Inc., hereinafter 
designated as Piggie Park, is a South Carolina corporation 
with its principal office in Columbia, South Carolina. De­
fendant L. Maurice Bessinger, hereinafter designated as 
Bessinger, is the principal stockholder and general man­
ager of the corporate defendant. 2

2. Piggie Park owns, operates, or franchises six eating 
establishments specializing in Southern style barbecue

Opinion and Order of the District Court



141a

which are located as follows:3 1) Piggie Park No. 1, 1601 
Charleston Highway, also being designated as U. S. High­
ways Nos. 21, 176 and 321 at the intersection of S. C. High­
way No. 215, in West Columbia, South Carolina; 2) Piggie 
Park No. 2 on the Sumter Highway, also being designated 
as U. S. Highways Nos. 76 and 378 in Columbia, South 
Carolina; 3) Piggie Park No. 3 on the Camden Highway, 
also being designated as U. S. Highway No. 1, in Columbia, 
S. C .; 4) Piggie Park No. 4 on Broad Street Extension, 
which is also designated as U. S. Highways Nos. 76, 378 
and 521 in Sumter, South Carolina; 5) Piggie Park No. 6 
on Highway No. 291 By-Pass North, which connects U. S. 
Highways Nos. 25, 29, and Interstate Highways Nos. 85 
and 385 in Greenville, South Carolina; and 6) Piggie Park 
No. 7, also known as “Little Joe’s Sandwich Shop,” at 1430 
Main Street in Columbia, South Carolina. All of Piggie 
Park’s eating places are of the drive-in type with the 
exception of Piggie Park No. 7 also known as “ Little Joe’s 
Sandwich Shop” in downtown Columbia. In order to be 
served at one of the drive-ins a customer drives upon the 
premises in his automobile and places his order through 
an intercom located on the teletray immediately adjacent 
to and left of his parked position. After pushing a button 
located on the teletray his order is taken by an employee 
inside the building who is generally out of sight of the 
customer. When the order is prepared a curb girl then 
delivers the food or beverage to the customer’s car and 
collects for same. This is generally the only contact which

3 The official South Carolina State Highway Department Primary 
System Map for 1965-66 has been used in determining the United 
States and State Highway designations.

Opinion and Order of the District Court



142a

any of defendant’s employees has with any customer un­
less additional service is desired. The orders are served in 
disposable paper plates and cups, and may be consumed 
by the customer in his automobile on the premises or after 
he drives away, solely at his option. There are no tables 
and chairs, or counters, bars or stools at any of the drive-ins 
sufficient to accommodate any appreciable number of pa­
trons. The service is geared to service in the customers’ 
cars. Piggie Park claims the distinction of operating the 
first drive-in specializing in barbecue although it sells other 
types of short orders. The barbecue meat and hash com­
prising a substantial majority of its sales are sold in bulk 
by the pound or the quart, as well as in individual orders. 
Customers are encouraged to consume the food off the 
premises by its service in disposable containers, with no 
chinaware or silver eating utensils being used. At the five 
drive-ins the carry-out business for off-the-premises con­
sumption averages fifty percent during the year, depend­
ing upon the season and the weather.4 * I

Opinion and Order of the District Court

4 The uncontradicted testimony of defendant Bessinger at pp.
222-223 of Tr. was as follows:

“Q. Mr. Bessinger, with reference to the total volume of 
your business, do you know how much of your business is carry 
out, or take away business from your drive-ins? A. Yes. Of 
course, as I said, we try to encourage this to the maximum 
degree. This would average 50%. Carry out would average 
50%. I say average, because in the real cold temperature it 
would jump up to eighty to ninety percent; in the real hot 
temperature it would also jump up to eighty to ninety per­
cent. So it will have an overall percentage of my business that
I know for a fact is carried back to the office or carried back 
home or carried on a picnic, what have you.

“Q. Do you in fact have facilities for bulk carrying out? 
A. Yes we sell a lot of barbecue by the pound. We sell a lot



143a

3. Piggie Park No. 7, or “ Little Joe’s Sandwich Shop” , 
in downtown Columbia is the one exception to the drive-in 
type operation. Defendant operates this establishment as 
a cafeteria type sandwich shop offering three-minute ser­
vice, also specializing in barbecue, with table and chair 
seating capacity for sixty customers and where the food is 
primarily consumed on the premises. It is located in the 
prime shopping area of Columbia’s Main Street; ninety 
percent of its business is between 11:00 a.m. and 2 :30 p.m., 
with the majority of its customers being office workers, 
clerks and downtown shoppers. Its business hours corre­
spond generally with those of the surrounding retail stores.

4. Two of the Negro plaintiffs were denied service by 
Piggie Park No. 2 on the Sumter Highway in Columbia 
on August 12, 1964 when they drove upon the premises in 
their automobile. At first a waitress who came out seeing 
that they were colored went back into the building without 
taking their order or saying anything to them. Shortly a 
man with an order pad came to their car, he also refused 
to take their order, and gave no reason or excuse for this 
denial of service, although other white customers were 
being served there at that time. The fact that Piggie Park 
at all six of its eating places denies full and equal service

Opinion and Order of the District Court

of quarts of hash by the quart, and slaw by the quarts, and 
rice by the quarts. We built up quite a big business on that.

“Q. Carry off? A. Oh absolutely, and July 4th we sell sev­
eral tons of barbecue.”

It is noted that plaintiff’s counsel did not cross-examine Bessinger 
to any extent in reference to the above testimony and no evidence 
was offered to counter or rebut the same.



144a

to Negroes because of their race is uncontested and com­
pletely established by the evidence. The limited Negro 
customers who are served must place and pickup their 
orders at the kitchen windows and are not permitted to 
consume their purchases on the premises. Thus, Negroes 
because of race are being denied full service and are vic­
tims of discrimination at all of Piggie Park’s eating estab­
lishments.

5. No effort is made by defendant to determine whether 
a Negro customer who purchases food on a take-out basis 
is an interstate traveler.

6. Piggie Park displays on each of its establishments 
one modest sign located generally in the front window ad­
vising that it does not serve interstate travelers. In its 
newspaper advertisements is included a notice in small 
print at the bottom of the ad advising that “ we do not serve 
interstate travelers” .5 No mention of this practice is in­
cluded in any of its radio advertisements for business. Al­
though some testimony and business records indicate that 
defendant has refused to serve a very limited number of 
interstate travelers in the jjast, the inescapable conclusion 
demanded by all of the circumstances before the court is 
that many interstate travelers do obtain service at all of 
its locations. Except for the small sign in the window no 
steps are taken by defendant at “ Little Joe’s Sandwich 
Shop” to determine whether or not a customer is an inter­
state traveler, and at its drive-ins no attempt to determine 
a customer’s travel status is claimed to be made until after

Opinion and Order of the District Court

5 See defendant’s Exhibit “6”.



Opinion and Order of the District Court

his order is prepared and actually delivered to his auto­
mobile. If the curb girl who serves the order notices that a 
customer’s car bears an out-of-state license, she is in­
structed to inquire whether such customer is an interstate 
traveler or is residing in South Carolina. There is testi­
mony to the effect that if the customer admits that he is an 
interstate tourist service is denied to him although the food 
has been especially prepared to his order. No inquiry what­
ever is made of any customers who are riding in an auto­
mobile with South Carolina License plates. Inasmuch as 
all five of defendant’s drive-ins are located at most stra­
tegic positions upon main and much traveled interstate 
highways and especially in view of the limited action taken 
by defendant to determine the travel status of its cus­
tomers the court can only conclude that defendant does 
serve interstate travelers at all of its locations.6

7. Several employees of wholesale food companies which 
regularly sell foodstuffs and other merchandise to Piggie 
Park testified that the bulk of the food and related products 
sold by their firms to defendant was and is obtained by them 
from producers and suppliers beyond the State of South 
Carolina as follows:

6 The only direct evidence adduced by plaintiffs tending to estab­
lish service to interstate travelers was the testimony of their wit­
ness, Sharon A. Miles, a white woman who entered “Little Joe’s 
Sandwich Shop” on April 2, 1966 and obtained service without 
any question. Upon cross-examination she admitted that she and 
her husband who is the Columbia Director for the South Carolina 
Board of Voter Education Project had resided in this state for 
one and one-half years. Apparently plaintiffs made no attempt to 
conduct any surveys at defendant’s drive-in establishments to show 
that customers in out-of-state automobiles were actually being 
served at any of defendant’s locations.



146a

(a) Greenwood Packing Company, a large supplier 
of meat products, purchases two-thirds of its mer­
chandise from suppliers outside of South Carolina. 
They sell primarily pork shoulders, spareribs and 
Boston Butt (a cut off the shoulder). All hogs are 
live when purchased by it. They are thereafter 
slaughtered, cut-up, processed and packed within the 
State of South Carolina. Its total sales to defendant 
during the fiscal year 1964-65 was $39,663.91 and $15,- 
148.24 from June 1 through December 12, 1965. Its 
sales to defendant are made without keeping records to 
indicate which of its meat is produced or slaughtered 
in South Carolina as contrasted to that which is pur­
chased by it from out-of-state already processed and 
ready for sale to defendant.

(b) Dreher Packing Company of Columbia, South 
Carolina, a Avholesale distributor of luncheon meats, 
pork sausage, beef and ground beef patties regularly 
sells meat products to defendant. Approximately 
eighty percent of the meat products sold by it to Piggie 
Park is acquired from suppliers from outside of South 
Carolina, and no records are maintained to distinguish 
the in-state from the out-of-state items. However, 
all of its meat products is processed in some manner 
by it within the state before sale and delivery to 
defendant. It considers defendant as one of its good 
customers.

(c) Holly Farms Poultry Industry, which secures 
eighty-five percent to ninety percent of its chickens 
from a North Carolina supplier, sells a small quantity 
of meat each month to defendant.

Opinion and Order of the District Court



147a

(d) Piggie Park no longer sells beer at any of its 
locations, its licenses having expired in June 1965. 
Prior to that time substantial quantities of beer were 
purchased from Schafer Distributing Company of 
Columbia, none of which was brewed in South Carolina. 
It also purchased beer from Acme Distributing Com­
pany, distributors of Pabst Blue Ribbon beer which was 
shipped into the state from Peoria, Illinois.

(e) Defendant purchases pepsi-cola syrup by the 
gallon from Pepsi-Cola Bottling Company of Columbia. 
The ingredients which go into this syrup are shipped 
into South Carolina from New York, Kentucky and 
Georgia. During 1965 defendant purchased 1,374 gal­
lons of the syrup at $2.75 per gallon, including tax.

(f) Defendant regularly buys fresh, frozen and 
canned foods from Pearce-Young-Angel of Columbia, 
a large wholesaler. With the exception of its eggs all 
items regularly sold to defendant, including limes, 
onions, beef patties, cabbage, lettuce, tomatoes, french 
fried potatoes, bell peppers, shrimp and cheese are 
produced out of South Carolina. Defendant’s pur­
chases from this firm during the fiscal year 1964-65 
amounted to $41,255.45, most of which had moved into 
the state in commerce.

(g) Thomas and Howard Company of Columbia, a 
large wholesale distributor of food and related prod­
ucts, regularly sells merchandise to defendant such 
as coco-cola syrup, sugar and salt. Altogether it 
handles approximately 7,000 items with about sixty 
percent or more being food items, mostly produced or

Opinion and Order of the District Court



148a

manufactured in states other than South Canolina. 
Thus a large quantity and variety of the products pur­
chased by defendant from this company have moved 
in commerce. Although only about sixty percent of the 
items purchased from it are foodstuffs the remaining 
forty percent of the items as herein enumerated are 
necessary and related to either the preparation of de­
fendant’s food for sale or its service of same.

(h) Epes-Fitzgerald Company sells to defendant 
paper products consisting of cups, plates, napkins, 
waxed paper, paper bags and boxes. Of these items 
all are manufactured outside of South Carolina except 
the paper cups and the paper boxes.

(i) Trusdale Wholesale Meat Company of Columbia 
sold a substantial quantity of meat products to defen­
dant up until August 1965. Since that time they 
have made no sales to the defendant. This supplier 
received less than five percent of its products from 
outside of South Carolina.

(j) Roddey Packing Company of Columbia also sup­
plies meat products to defendant. Approximately 
twenty percent of its hogs are purchased live out-of- 
state and then slaughtered and processed in South 
Carolina before sale to its customers.

(k) Southeastern Poultry Company of Columbia is 
another supplier of chickens to defendant. All of its 
chickens are grown and processed in South Carolina. 
During 1964 its sales to defendant totalled $6,895.82 
and in 1965 totalled $13,757.48.

Opinion and Order of the District Court



149a

8. Mrs. Merle Brigman, defendant’s bookkeeper and 
chief buyer of its merchandise, testified that she had made 
a compilation from defendant’s records which she keeps 
to determine what percentage of food served by defendant 
was either produced, grown or processed in South Caro­
lina. In arriving at her percentages she did not include 
as out-of-state foods such items as live hogs and cows pur­
chased out-of-state by their suppliers when slaughtering 
or any processing were done in the state prior to delivery 
to defendant. Neither did she include pepsi-cola syrup con­
centrate purchased from the Pepsi-Cola Bottling Company 
as an out-of-state product since it was mixed and processed 
within the state. Not included in her percentages were 
any of the ancillary or related items purchased by defen­
dant’s suppliers from out-of-state such as salt, sugar, paper 
products, spices, etc. She concluded that twenty-five per­
cent of the “ food” purchased by defendant during fiscal 
years 1963-64 and 1964-65 was “ processed and/or manu­
factured” outside of South Carolina, and seventy-five per­
cent was produced and/or manufactured into “ food” within 
South Carolina. She further testified that eighteen percent 
of defendant’s “ food” purchased during the period of June 
1, 1965 through December 12, 1965 was “ processed and/or 
manufactured” into “ food” out-of-state.7 Defendant’s book­
keeper also testified that defendant’s expenditures for food 
and related items for fiscal year 1963-64 totaled $240,565.58 
and for fiscal year 1964-65 totaled $222,845.25. Its ex­
penditures for May 31, 1965 through December 12, 1965 
were $122,724.13.

7 See defendant’s Exhibit “E ”, witness’s compilation of in-state 
and out-of-state foods.

Opinion and Order of the District Court



150a

Considering defendant’s admission that from eighteen 
percent to twenty-five percent of its “ food” in a finished 
and ready-for-use form for the years 1963 through 1965 
moved in commerce into the state from another state; also 
the large quantities of live cattle, hogs and chickens pur­
chased by defendant’s suppliers from outside of the State 
and slaughtered and processed within the State before 
delivery to defendant, which were not included by defen­
dant in its out-of-state percentages, along with other food­
stuffs purchased by it which were shipped into the State 
and processed herein, together with such related items as 
sugar, salt, pepper, spices and sauces which admittedly 
moved in commerce, it is obvious that considerably more 
than twenty-five percent of the total food products served 
by defendant came from outside of the State. The court is 
persuaded and therefore finds that at least forty percent 
of the food served by defendant during the years in ques­
tion “moved in commerce” .

Conclusions of Law

By Section 2000a(c) Congress has determined that an 
establishment described in paragraph (2) of Subsection (b) 
of Section 2000a affects commerce within the meaning of 
the public accommodations subchapter of the Act if “ it 
serves or offers to serve interstate travelers or a substan­
tial portion of the food which it serves . . . , has moved in 
commerce” . As was stated by the Three-Judge Court in 
W illis  v. P ickrick R esta u ra n t, 231 F. Supp. 396 (N. D. Ga. 
1964), at page 399:

“ [T]he application of the Civil Bights Act to these 
defendants depends upon the resolution of issues of

Opinion and Order of the District Court



151a

fact, for a restaurant is not brought within the defini­
tion of interstate commerce unless it meets one of the 
tests enumerated in subparagraph (c) of Section 201. 
T h ese  tests  are in the alternative. Either it must serve 
or offer to serve interstate travelers or a substantial 
portion of the food which it serves or other products 
which it sells must have moved in interstate com­
merce.”  (Emphasis added.)

Moreover, the Supreme Court in M cC lu n g, supra, in up­
holding the constitutionality of the public accommodations 
section of the Act indicated that Congress has made suffi­
cient findings of discrimination to be conclusive and acted 
within its constitutional right granted by the Commerce 
Clause of the United States Constitution. Thus it is not 
necessary in this or any other individual case to determine 
that defendant’s acts in actuality affect commerce in and 
of itself; but it is necessary to determine whether defen­
dant in the operation of its eating establishments serves a 
substantial portion of food which has moved in interstate 
commerce, o r  whether it serves or offers to serve inter­
state travelers. If it is determined that defendant’s estab­
lishments meet either of these tests in the alternative, then 
under the Act they affect commerce.

Has a substantial portion of the food which defendant 
serves in its six eating establishments moved in interstate 
commerce? In line with the factual determinations herein­
above arrived at the answer is yes. Although the Act does 
not specifically define “ substantial” the court construes it 
in the light of its usual and customary meaning: That is, 
something of real worth and importance; of considerable

Opinion and Order of the District Court



152a

value; valuable; something worthwhile as distinguished 
from something without value or merely nominal.8

Under defendant’s own admission that twenty-five per­
cent of the foods it served in the years 1963-64 and 1964-65 
and eighteen percent for the first six months of fiscal year 
1965-66 moved in commerce, the court has no hesitancy in 
concluding as a matter of fact and law that a “ substantial” 
portion of the food which it serves has moved in interstate 
commerce.

Neither can the court agree with defendant’s contention 
that all foodstuffs, including hogs, beef and chickens, to­
gether with other related items, which are slaughtered or 
processed within the State after having been shipped in 
from another state, should be considered as in-state goods 
which have not moved in commerce on the basis that they 
came to rest in this state and thereby became intrastate 
in character. Such contention was overruled by M cC lu n g, 
supra, at page 302 where the Court stated:

“ Nor are the cases holding that interstate commerce 
ends when goods come to rest in the State of destina­
tion apposite here. That line of cases has been applied 
with reference to state taxation or regulation but not 
in the field of federal regulation.”

From the foregoing this court has a mandate from the 
Supreme Court to conclude that all products sold to defen­
dant as food by its producers which have moved in inter­
state commerce into this state in some form, even though 
they may have been slaughtered or otherwise processed

8 Definition of “substantial” contained in Black’s Law Dictionary, 
Fourth Edition, 1951.

Opinion and Order of the District Court



153a

after arrival here, are to be considered as food which has 
moved in commerce, as that phrase is used in Section 2000a 
(c)(2) of the Act. Therefore, by including all foodstuffs 
served by the defendant during the periods under con­
sideration which have moved in interstate commerce the 
court has concluded that at least forty percent of the same 
has moved in commerce and unquestionably constitutes a 
“ substantial” portion of the total food which it serves in 
all of its six locations.

Does the defendant serve or offer to serve interstate 
travelers? As hereinabove pointed out, the direct evidence 
produced by plaintiffs that defendant serves or offers to 
serve interstate travelers is slight, unimpressive and in­
conclusive ; however, from all the circumstances before the 
court there is no doubt but that defendant has served and 
is serving interstate travelers. This is apparent from the 
testimony of a witness who testified that upon presenting 
herself for service at “ Little Joe’s Sandwich Shop” no in­
quiry whatever was made as to her place of residence. 
Probably of more import is the fact that all five of defen­
dant’s drive-ins are located upon much traveled interstate 
and federal highways with large signs at and about each 
location advertising its products. Defendant also adver­
tises for business in daily newspapers and over the radio. 
Moreover, it employs no reasonably effective means of de­
termining whether its customers are inter or intra-state 
travelers. The court, therefore, concludes that defendant 
serves or offers to serve interstate travelers at all of its 
locations.

Having concluded that all of defendant’s establishments 
“ affect commerce” within the provisions of Section 2000a

Opinion and Order of the District Court



154a

(c)(2) of the Act, the third and last question for determi­
nation arises from the construction to be given to subsec­
tion (b) (2) of said section of the Act which provides that 
“ any restaurant, cafeteria, lunchroom, lunch counter, soda 
fountain, or other facility principally engaged in selling  
fo o d  fo r  consu m ption  on the p re m ises”  [emphasis added] 
is a place of public accommodation within the meaning of 
the Act.

Do defendants’ drive-ins and sandwich shop come within 
the ambit of the Act as intended by Congress? The court 
has no difficulty in deciding that “Little Joe’s Sandwich 
Shop” is within the coverage of the Act. It comes within 
the usual and customary definition of a restaurant, lunch­
room, lunch counter, or other eating establishment mainly 
engaged in serving food for on-the-premises consumption. 
It caters to walk-in customers who are furnished tables 
and chairs, including a balcony, where they may, and gen­
erally do, sit down and consume their orders within the 
building. Its facilities, operation, and clientele are entirely 
different to those of the five drive-ins, which have no such 
accommodations for diners to walk into buildings to be 
served and to eat inside. They cater entirely to motorized 
customers who do not alight from their automobiles to 
order or eat, whose orders are served in disposable con­
tainers, and fifty percent of all food served to them is con­
sumed off the premises.

By limiting the scope of places of public accommodation 
to restaurants, cafeterias, lunchrooms, soda fountains, and 
other facilities principally engaged in serving food for 
consumption on the premises, it is only reasonable to as­
sume that Congress did not intend to include within cover­

Opinion and Order of the District Court



155a

age of the Act such eating places as defendant’s drive-ins, 
which do not in the main provide its patrons with facilities 
to be seated so that their orders may be and generally are 
eaten on the premises. None of the reported cases dealing 
with eating houses has considered this aspect of the Act. 
Both M cC lu n g  and P ickrick R estau ran t, supra, involved 
conventional type restaurants which served their customers 
while seated at tables and who consumed the food entirely 
on the premises. Surely if Congress had intended to in­
clude within the public accommodations provisions of the 
Act all public eating establishments which it determined 
“affect commerce” if they meet either of the alternate tests 
of Section 2000a(c)(2), then its including in Subsection 
(b)(2) of said Section the phrase “ or other facility princi­
pally engaged in selling food for consumption on the prem­
ises” would be totally futile and meaningless. Our review 
of the Act’s legislative history, committee reports, and con­
gressional debates has failed to indicate a contrary motiva­
tion. The court must assume from its verbage that Con­
gress intended to limit the coverage of the Act to those 
eating places primarily engaged in serving food for on-the- 
premises consumption.9

9 Whether “principally engaged in the sale of food for consump­
tion on the premises” qualifies “any restaurant, cafeteria, lunch­
room, lunch counter, soda fountain” or only “other facility” has 
opposing persuasions. The House Report of the Committee on the 
Judiciary, 2 U. S . C on g . &  A d m in . N ew s 19 6 4  p. 2391, 2395 reads 
as follows:

“S ection  2 0 1 (h ) defines certain establishments to be places of 
public accommodation if their operations affect commerce . . . 
These establishments are . . . (2) restaurants, lunch counters, 
and sim ilar establishm ents, including those located in a retail 
store; and gasoline stations.” (Emphasis added.) By this 
statement the inference could be drawn that the disjunctive

Opinion and Order of the District Court



156a

Indeed this court has no motive, intent or purpose to ex­
tend by judicial fiat any of the provisions of the Civil 
Rights Act of 1964 beyond the scope clearly enunciated 
and adopted by Congress.

Although it has been stated that the term restaurant 
has no definite legal meaning unless defined by statute, 
Congress was well aware that an eating place or a restau­
rant in the generally accepted sense is defined as follows: 
“ A public place where food is sold casual guests to be eaten 
upon the premises; a house where cooked provisions are 
sold, to be eaten on the premises; a house where cooked 
provisions are sold, to be eaten on the premises; a house 
where food is sold to customers; a place of resort for 
meals.” 28 C. J. S. pp. 825-826. In S ta te  v. S h oa f, 179 N. C. 
744,102 S. E. 705 (1920), the Supreme Court of North Caro­
lina in applying a Sunday law stated:

“ The terms ‘restaurant’ and ‘cafe’, in common par­
lance . . . are substantially synonymous. A restaurant 
is generally understood to be a place where refresh­
ments, food, and drink are served . . . while the word 
‘restaurant’ has no strictly defined meaning, it seems 
to be used indiscriminately as a name for all places

Opinion and Order of the District Court

“or” in Section 201(b), as enacted, limited the qualifying 
phrase to “other facility”. In other words, “or other facility 
principally engaged in selling food for consumption on the 
premises” means only “and similar establishments”. The 
court, however, is persuaded in that “other” as used in its 
primary sense of “one of two or more” requires the qualifying 
phrase to be read with “any restaurant, cafeteria, lunchroom, 
lunch counter, soda fountain” or at least required to be used 
to define “restaurant, lunchroom, lunch counter, soda foun­
tain.”



157a

where refreshments can be had, from a mere eating 
house and cookshop to any other place where eatables  
are fu rnish ed to be consum ed on the p rem ises .”  (Em­
phasis added.) See also the annotation in 122 A. L. R. 
page 1399.

Even if defendant’s drive-ins were found to be restau­
rants or eating places within the popular and usual defini­
tion, they should not be considered as facilities “ principally 
engaged in selling food for consumption on the premises” . 
The adverb “ principally” is defined as “ primarily; chiefly, 
mainly, in the principal manner, in the chief place or de­
gree” . Webster’s International Dictionary, Second Edition. 
Under the plain meaning of the phrase one who serves fifty 
percent or less of its food which is taken away and eaten 
off the premises cannot be held to be principally engaged 
in selling food for consumption on the premises. The un­
contradicted evidence before the court is that only fifty 
percent of the food served at defendant’s drive-ins is con­
sumed off the premises, and all of its patrons are encour­
aged to take their orders elsewhere for consumption.

The court therefore concludes that defendant’s five drive- 
in establishments are not principally engaged in serving 
food for on the premises consumption, and are not places 
of public accommodation within the meaning and purview 
of the Civil Rights Act of 1964; thus, plaintiffs are not en­
titled to the demanded relief as to them. On the other hand 
it is concluded that “Little Joe’s Sandwich Shop” is princi­
pally engaged in selling food for consumption on the prem­
ises, and is therefore a place of public accommodation with 
the Act. As to it, plaintiffs have established their right to 
the requested relief. It is, therefore,

Opinion and Order of the District Court



158a

Ordered that an injunction will issue in the following 
term s:

(a) The defendants, Piggie Park Enterprises, Inc., and 
L. Maurice Bessinger, their agents, employees, successors, 
and all persons acting in concert with them, and at their 
direction, are enjoined from refusing to admit Negroes to 
the premises of Piggie Park No. 7, also known as “Little 
Joe’s Sandwich Shop”, located at 1430 Main Street, Colum­
bia, South Carolina, upon the same basis and upon the 
same conditions that non-Negro members of the general 
public are admitted to said establishment;

(b) They are also enjoined from failing or refusing to 
sell food, meals, or other merchandise and to provide ser­
vices, facilities, privileges, advantages and accommodations 
to Negro patrons at said establishment upon the same basis 
and upon the same conditions that they are made available 
to patrons and customers of other races.

In order that the defendants may have an opportunity 
to appeal, and if they so desire to seek a stay of this order 
until such appeal is consummated, it is Ordered that the 
foregoing injunction shall become effective thirty days from 
the date hereof, to wit, on the 27th day of August, 1966. 
Court costs exclusive of attorneys’ fees are hereby awarded 
to plaintiffs. Let judgment be entered accordingly.

Charles E. Simons, Jr.
U nited  S ta te s  D istrict J u d ge

Opinion and Order of the District Court

Charleston, South Carolina, 
July 27th, 1966.



159a

Opinion of the United States Court of Appeals 
for the Fourth Circuit

(Filed: April 24, 1967)

Cbaven, Circuit Judge:

This is a class action brought to obtain injunctive relief 
and the award of counsel fees under Title II of the Civil 
Rights Act of 1964, 42 U.S.C.A. §§ 2000a to a-6. Plaintiffs 
appeal from the decision of the district court holding that 
Negro citizens may be barred on account of their race and 
color from buying and eating barbecue at certain drive-in 
restaurants in South Carolina. We disagree and reverse.*

The facts as found by the district court are not in dispute. 
Briefly stated,1 Piggy Park Enterprises, Inc. (L. Maurice 
Bessinger is the principal stockholder and general man­
ager) owns and operates five eating establishments spe­
cializing in southern style barbecue, all of which are located 
on or near interstate highways.* 1 2

All of Piggy Park’s eating places are of the drive-in 
type. In order to be served, a customer drives upon the 
premises in his automobile and places his order through an 
intercom. When he pushes a button, his order is taken by 
an employee inside the building who is usually out of sight 
of the customer. A  curb attendant delivers the food or 
beverage to the customer’s car and collects for the same.

* Judge J. Spencer Bell voted in conference with the other mem­
bers of the court to reverse. His untimely death on March 19, 1967, 
prevented his participation in the preparation of this opinion.

1 For a detailed statement see N ew m a n  v. P ig g y  P ark  E n terp rises , 
In c ., 256 F. Supp. 941 (D.S.C. 1966).

2 There was a sixth place, known as Little Joe’s Sandwich Shop, 
held by the district court to be within 42 U.S.C.A. § 2000a(b) (2). 
Injunctive relief was granted and no appeal was taken.



160a

Orders are served in disposable paper plates and cups. 
The food is served in such a way that it is ready for con­
sumption. Half the customers eat it in their automobiles 
while parked on the premises. There are no tables, chairs, 
counters, bars, or stools at any of the drive-ins sufficient 
to accommodate any appreciable number of patrons.

Although Piggy Park and Bessinger denied in their An­
swer and two amended Answers that plaintiffs had been 
denied service at one or more of Piggy Park’s drive-ins, it 
was uncontested at the trial that Piggy Park denied full 
and equal service to Negroes because of their race at all of 
its eating places.3

The district court erroneously concluded that Piggy 
Park’s drive-ins were not covered by the federal public 
accommodations law contained in the Civil Rights Act of 
1964.4 The court reasoned that the statute would not apply

Opinion of the United States Court of Appeals

3 The few Negro customers who have been served took their places 
and picked up their orders at the kitchen windows. They were not 
permitted to consume their purchases on the premises.

4 The pertinent provisions of the Act are:
§ 2000a. Prohibition against discrimination or segregation in 

places of public accommodation— Equal access
“(a) All persons shall be entitled to the full and equal enjoy­
ment of the goods, services, facilities, privileges, advantages, 
and accommodations of any place of public accommodation, 
as defined in this section, without discrimination or segrega­
tion on the ground of race, color, religion, or national origin.

“(b) Each of the following establishments which serves the 
public is a place of public accommodation within the mean­
ing of this subchapter if its operations affect commerce, or 
if discrimination or segregation by it is supported by State 
action:



161a

to a drive-in eating place unless a majority of the pre­
pared food sold was actually consumed by the customers on 
the premises. It found from the testimony of Mr. Bessinger 
that fifty percent of his food volume was consumed on the 
premises and fifty percent off the premises, and from that 
finding of fact concluded that the drive-ins were n ot fa­
cilities “ principally engaged in selling food for consump­
tion on the premises.”

Such a construction, we think, finds no support in con­
gressional history. The Congress did not intend coverage 
of the Act to depend upon a head count of how many 
people eat on the premises or a computation of poundage 
or volume of food eaten. If it had so intended, it would 
have been a simple matter to change the questioned phrase 
“ for consumption on the premises” to read “ actually con­
sumed on the premises.”

Opinion of the United States Court of Appeals

“ (1) . . . .
“(2) any restaurant, cafeteria, lunchroom, lunch counter, 
soda fountain, or other facility, principally engaged in sell­
ing food for consumption on the premises, including, but 
not limited to, any such facility located on the premises 
of any retail establishment; or any gasoline station;
“(3) ... ; and 
“(4) . . . .

“(c) The operations of an establishment affect commerce 
within the meaning of this subchapter if (1) . . . .  (2) in the 
case of an establishment described in paragraph (2) of sub­
section (b) of this section, it serves or offers to serve inter­
state travelers or a substantial portion of the food which it 
serves, or gasoline or other products which it sells, has moved 
in commerce; . . .” 42 U.S.C.A. § 2000a(a)-(c).



162a

During the House hearings,5 the Attorney General said 
“ the areas of coverage should be clear to both the proprie­
tors and the public.” If the “ commerce” tests6 are the 
principal criteria, and we think they are, clarity of cov­
erage is promoted. A  traveler can then intelligently assume 
that an eating place on an i/nterstate highway is covered. 
Under the district court’s fifty percent test of actual con­
sumption on the premises, prospective Negro customers 
would have no idea whether or not they might be served 
and would continue to occupy the intolerable position—at 
least with respect to drive-ins—in which they found them­
selves prior to passage of the Act with respect to inter­
state travel.7 In a mobile society, the ready availability of 
prepared, ready-to-eat food is a practical necessity—not a 
luxury.

In our view, the emphasis in the phrase “principally 
engaged in selling fo o d  for consumption on the premises” 
is properly on the word “ food” . The term “ principally” 
did not appear in the bill as introduced. It was added by 
the House Judiciary Committee and retained in the same 
form when the House version of the coverage provisions 
was ultimately adopted in the Senate. Its inclusion was not

Opinion of the United States Court of Appeals

5 H ea rin g s on H .R . 7 1 5 2  B e fo r e  the H o u se  C om m ittee  on the 
J u d icia ry , 88th Cong., 1st Sess., pt. 4, at 2655 (1963).

6 There are two in the disjunctive:
“(c) The operations of an establishment affect commerce . . .  if 
. . .  it serves or offers to serve interstate travelers or a substan­
tial portion of the food which it serves . . . has moved in com­
merce.” 42 U.S.C.A. § 2000a(c).

7 That the test is absurdly impractical is illustrated by Bessin- 
ger’s testimony that consumption on premises varied with the 
weather. On such a hypothesis, a given drive-in might be covered 
one day, week, or month, and not at other times.



163a

intended to have any bearing upon the percentage of food 
consumed on the premises, but was intended only to ex­
clude from coverage places where food service was inci­
dental to some other business, e.g ., bars and “ Mrs. Murphy” 
tourist homes serving breakfast as a matter of convenience 
to overnite lodgers. Given the intention of Congress to 
eliminate bars,8 the meaning of “ principally” comes into 
clear focus. Nothing in the 1964 Act as introduced or in 
any revision made before its enactment except for the addi­
tion of the word “ principally” would exclude bars (and 
other places such as bowling alleys and pool rooms) serving 
food as an incident to other business.

The words in the statute “ for consumption on the prem­
ises” modify the prior word “ food” and describe the kind 
of food sold by other facilities that are covered similar to 
restaurants, cafeterias, lunchrooms, lunch counters, and 
soda fountains. The Congress clearly meant to extend 
its power beyond the ordinary sit-down restaurant and 
just as clearly did not undertake to legislate with respect 
to grocery type food stores which would have been cov­
ered but for the modifying phrase “ for consumption on 
the premises.” Thus, food stores are n ot covered, but 
stores (or facilities) that sell food of a particular ty p e , i.e., 
ready for consumption on the premises, are covered. What

Opinion of the United States Court of Appeals

8 See statement of Senator Magnuson, Chairman of the Senate 
Committee on Commerce and principal floor spokesman in the 
Senate for Title II, that “a bar in the strict sense of that word 
would not be covered by Title II since it is not ‘principally en­
gaged in selling food for consumption on the premises’.” 110 Cong. 
Rec. 7406 (1964).
We find no legislative history suggesting that “principally” was 
inserted to eliminate eating places doing a predominantly carry-out 
service.



164a

the customers actually do with the ready-to-eat food was 
not the concern of the Congress—whether they eat it then 
and there or subsequently and elsewhere.

The sense of this plan of coverage is apparent. Retail 
stores, food markets, and the like were excluded from the 
Act for the policy reason that there was little, if any, dis­
crimination in the operation of them. Negroes have long 
been welcomed as customers in such stores. See 110 Cong. 
Rec. 6533 (1964) (remarks of Senator Humphrey).

Discrimination with respect to ready-to-eat food service 
facilities w as a problem. When a substantial minority of 
American citizens are denied restaurant facilities—whether 
sit-down or drive-in—that are open to the public, unques­
tionably interstate commerce is burdened. K a tzen b a ch  v. 
M cC lw ng, 379 U.S. 294 (1964). It was this evil the Con­
gress sought to eliminate to the end that all citizens might 
freely and not inconveniently travel between the states. We 
think the Congress plainly meant to include within the 
coverage of the Act all restaurants, cafeterias, lunchrooms, 
lunch counters, soda fountains, and all o th er  facilities sim­
ilarly engaged as a main part of their business in selling 
food ready for consumption on the premises. We are fur­
ther of the opinion that the statutory language accom­
plished that purpose.

C O U N S E L  F E E S

Title II as a whole demonstrates that the Congress in­
tended to assure rapid and effective compliance with its 
terms.9 42 U.S.C.A. Section 2000a-3(b) authorizes the court,

Opinion of the United States Court of Appeals

9 Thus, 42 U.S.C.A. §2000a-3(a) permits intervention by the At­
torney General in privately initiated public accommodations suits,



165a

in its discretion, to allow the prevailing party (other than 
the United States) a reasonable attorney’s fee as part of 
the costs. By reason of our reversal of the district court, 
the plaintiffs now become the “ prevailing party” , and on 
remand we instruct the district court to consider the al­
lowance of counsel fees, whether in whole or in part.

In exercising its discretion, the district court may prop­
erly consider whether any of the numerous defenses inter­
posed by defendants were presented for purposes of delay 
and not in good faith. But the test should be a subjective 
one, for no litigant ought to be punished under the guise of 
an award of counsel fees (or in any other manner) from 
taking a position in court in which he honestly believes— 
however lacking in merit that position may be.

The court may also consider whether the defendants 
acted in good faith in denying discrimination against 
Negroes and thus requiring proof of what was subsequently 
conceded to be true. A litigant who increases the burden 
upon opposing counsel by such tactics ought ordinarily bear 
the cost of unnecessary trial preparation. The so-called 
“general denial” is not countenanced by the Federal Rules 
of Civil Procedure.

R e v e r se d  and R em a n d ed  fo r  

C on sid era tion  o f  the A w a rd  
o f  C oim sel F e e s .

Opinion of the United States Court of Appeals

appointment of counsel for a person aggrieved, and “the commence­
ment of the civil action without the payment of fees, costs or se­
curity.” 42 U.S.C.A. § 2000a-5 authorizes the Attorney General to 
commence litigation where there is “a pattern or practice of re­
sistance to the full enjoyment” of Title II rights. 42 U.S.C.A. 
§ 2000a-2 broadly prohibits any attempt to punish, deprive, or in­
terfere with rights to equal public accommodations. See G eorgia  
v. R ach el, 384 U.S. 780 (1966).



166a

W inter, Circuit Judge, with whom S obeloff, Circuit Judge, 
joins, concurring specially:

Wholeheartedly I agree that Title II of the Civil Bights 
Act of 1964, 42 U.S.C.A. § 2000a, et seq ., is applicable to 
Piggie Park’s drive-in type facilities, and I join in the rea­
sons advanced for that conclusion. I agree also that the 
case should be remanded for consideration of an award 
of counsel fees, but I conclude that good faith, standing 
alone, should not always immunize a defendant from an 
award against him. Specifically, in this case, defendants 
are not entitled to the defense of good faith in regard to 
the major portion of their defenses.

The district judge is told that in exercising his discretion 
he should “ consider whether any of the numerous defenses 
interposed by defendants were presented for purposes of 
delay and not in good faith” because no defendant ought to 
be punished for “ taking a position in court in which he 
honestly believes— h o w ever  lacking in m erit that p osition  

m a y be.”  (emphasis supplied) In this case, defendants 
interposed defenses patently frivolous, and I would not 
permit them to avoid the costs of overcoming such de­
fenses on a purely subjective test of good faith.

In providing for counsel fees, the manifest purposes of 
the Act are to discourage violations, to encourage com­
plaints by those subjected to discrimination and to provide 
a speedy and efficient remedy for those discriminated 
against. I f counsel fees are withheld or grudgingly granted, 
violators feel no sanctions, victims are frustrated and in­
stances of unquestionably illegal discrimination may well 
go without effective remedy. To immunize defendants from

Opinion of the United States Court of Appeals



167a

an award of counsel fees, honest beliefs should bear some 
reasonable relation to reality; never should frivolity go 
unrecognized.

While the threat of an award of counsel fees ought not 
be used to discourage non-frivolous defenses asserted in 
good faith, the district court should be instructed to make 
an allowance in regard to some of defendants’ defenses 
and, in its discretion, to consider an allowance for the 
remainder of defendants’ defenses depending upon its de­
termination of defendants’ good faith and honest belief. 
Those clearly compensable are defendants’ assertion that 
their “ Little Joe’s Sandwich Shop,” a sit-down facility 
shown overwhelmingly by the proof to be a place where 
service was refused to Negro citizens, was not subject to the 
Act. The fact that the defendants had discriminated both 
at Piggie Park’s drive-ins and at Little Joe’s Sandwich 
Shop was of course known to them, yet they denied the 
fact and made it necessary for the plaintiffs to offer proof, 
and the defendants could not and did not undertake at the 
trial to support their denials. Includable in the same cate­
gory are defendants’ contention, twice pleaded after the 
decision in K a tzen b a ch  v. M cC lu n g , 379 U. S. 294 (1964), 
that the Act was unconstitutional on the very grounds 
foreclosed by M c C lu n g ; and defendants’ contention that 
the Act was invalid because it “ contravenes the will of God” 
and constitutes an interference with the “ free exercise of 
the Defendant’s religion.” The district judge should be 
told that, in awarding counsel fees, he should include an 
amount which fully compensates plaintiffs for the time, 
effort and expenses of counsel in overcoming these ele­
ments of expense needlessly imposed on them.

Opinion of the United States Court of Appeals



168a

O pinion o f  the U n ited  S ta te s  C ou rt o f  A p p ea ls

Only as to the remaining defenses do I think that de­
fendants’ good faith is the issue. If good faith is found 
not to have existed as to them, an additional award of 
counsel fees on a like basis should be made.



a mouton sta irr  
NCW YONK M,RX

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