Milliken v. Bradley Supplemental Brief for Respondents Bradley

    I n  t h e

BUUb (Emtrt uf Kppmlz
F oe th e  F if t h  Circu it  

No. 26612

W illiam  J . M axw ell ,

Plaintiff-Appellee,

S outhern  C h ristian  L eadership C onference, et al.,
Defendants-Appellants.

A P PE A L  FROM  T H E  U N IT E D  STATES D ISTR IC T COURT 
FOR T H E  N O R T H E R N  D ISTR IC T OF ALAB A M A

BRIEF FOR DEFENDANTS-APPELLANTS

Charles S teph en  R alston 
1095 Market Street 
San Francisco, California 94103

J ack  G reenberg
J ames M. N abrit , III
N orman  C. A m akeb  

10 Columbus Circle 
New York, New York 10019

P eter A. H all
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Defendants-Appellants



TABLE OF CONTENTS

PAGE

Statement of the Issues Presented for R eview ....... . 1

Statement of the Case ........ ....... ......................................  2

Statement of the Facts ............ ..........................................  4

Introduction ..................................................................  4

1. The Liberty Supermarket Demonstrations .....  6

2. The Events of February 22, 1968 .......................  10

A rgu m en t

Introduction....................................................     14

I. The Evidence Does Not Show That Any Agents 
or Employees of Appellant Were Authorized to 
Take Part in Its Behalf in the Demonstrations 
in Question Here ......................................................  15

II. The Evidence Was Insufficient in Law and Fact 
to Establish Liability for Plaintiff’s Injuries Be­
cause of the Acts of SCLC Employees Either 
for Negligence or for the Establishment of a 
Nuisance ......................................................................  22

III. The Evidence Was Insufficient to Support the
Amount of Damages Awarded ................................. 27

IV. The Granting of Damages Against SCLC Here
Constituted an Abridgement of Rights of Free 
Speech and Assembly Protected by the First and 
Fourteenth Amendments ........    29

Conclusion ................        33

Certificate of Service.......... ....... ....... ...... ..................... . 34



11

T able of C ases

PAGE

Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961) ...........  15

Foster & Creighton Co. v. St. Paul Mercury Indemnity 
Co., 264 Ala. 581, 88 So.2d 825 (1956) .......................  25

McPherson v. Taniiami Trailways, Inc., 383 F.2d 527
(5th Cir. 1967) .................... ........... -.......... -.................. 15, 21

Martin v. Anniston Foundry Co., 259 Ala. 633, 68 So.2d
323 (1953) ....... .................. ........................................-......  16

Morgan v. City of Tuscaloosa, 268 Ala. 493, 108 So.2d 
342 (1959) ..................-...................................................22,25

NAACP v. Overstreet, 221 Ga. 16, 142 S.E.2d 816 
(1965), cert. dism. as imprevidently granted, 384
IT.S. 118 (1966) ..................... .........................................30,31

Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963) ...........  15
New York Times v. Sullivan, 376 U.S. 254 (1964) .......  29

Perfection Mattress & Spring Co. v. Windham, 236 
Ala. 239, 182 So. 6 (1938) ..........................................  16

Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So.
328 (1915) ......................................................................16,17

Shelley v. Kraemer, 334 U.S. 1 (1948) ........................... 29
Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 

224 (1945) ..... ............. ......... ............................................. 22

Trans-America Insurance Co. v. Wilson, 262 Ala. 532,
80 So.2d 253 (1955) ........................... ..................... .....15,16



PAGE

Wade v. Brisker, 233 Ala. 585, 173 So. 64 ................... 19
Walker Comity v. Davis, 221 Ala. 195, 128 So. 144

(1930) ....... ........... ........ ............. ......................................  25
Wells v. Henderson Land & Lumber Co., 200 Ala. 262,

76 So. 28 (1917) ..... ........ ........................ .................... . 16
Whiteman v. Pitrie, 220 F.2d 914 (5th Cir. 1955) .......21, 27
Wilson & Co. v. Clark, 67 So.2d 898 (1953) ...............  19

Ill



In the

Irntfii BUUb (tart of Appeals
F ob, th e  F if t h  C ibchit 

No. 26612

W illiam  J. M axw ell ,

— v . —

Plaintiff-Appellee,

S outhern  C hristian  L eadership Conference, et al.,
Defendants-Appellants.

appeal ebom th e  united  states distbict court
EOB T H E  N O R T H E R N  DISTRICT OF ALAB A M A

BRIEF FOR DEFENDANTS-APPELLANTS

Statement of the Issues Presented for Review

1. Did the court below err in denying defendant-appel­
lant’s motions for directed verdict, judgment notwith­
standing the verdict, and for a new trial, made on the 
grounds that under the lav/ and the evidence the defen­
dant corporation could not be held liable for injuries 
suffered by the plain tiff-appellee ?

2. Was the verdict of the jury, both as to holding 
defendant-appellant liable and as to the amount of dam­
ages, supported by the law and the evidence?

3. Were defendant-appellant’s rights under the First 
Amendment denied by the awarding of damages against 
it as a result of its activities as shown by the evidence?



2

Statement of the Case

This is an appeal from the denial of motions for a 
directed verdict, a judgment notwithstanding the verdict, 
and for a new trial and from the jury verdict in a civil 
action for damages. This action was begun by a three- 
count complaint by plaintiff-appellee, William J. Maxwell, 
against the Southern Christian Leadership Conference 
(S.C.L.C.), defendant-appellant, and unnamed persons 
(Sup. App. 7-9j.1 The said unnamed persons were never 
identified during the course of this action and no other 
parties were ever joined as defendants.

The action was originally brought in state court, the 
plaintiff alleging that the defendant had negligently and 
intentionally caused injuries to be inflicted on the plain­
tiff. A  petition for removal was filed in the United States 
District Court for the Northern District of Alabama on 
the grounds of diversity of citizenship, the plaintiff being 
a citizen of the State of Alabama and the defendant a 
corporation organized under the laws of the State of 
Georgia with its offices there (S.A. 1-5). The required 
jurisdictional amount was satisfied since the action sought 
$150,000 worth of damages on each count. The plaintiff 
did not contest the removal of the action.2

1 The record on appeal is reproduced in two appendices. All 
references herein will be to the second, the Supplemental Appendix 
(S.A.) which contains all pleadings as well as the transcript of 
testimony at trial.

2 The defendant challenged service of process in the action on 
the ground that it was not doing any business in the State of 
Alabama at the time of the filing of the action so that there was 
no jurisdiction in either the state or federal court over it. After 
receiving affidavits from both sides on the motion, the district court 
ruled against the defendant. This question is not at issue in the 
present appeal.



3

Following a pre-trial conference and discovery, trial was 
had in this case on March 4 and 5, 1968 before a jury. 
On the day of the trial the plaintiff filed an amendment 
to his complaint dropping the original two counts and 
substituting three others therefor. The district court al­
lowed only two of the amended counts, one alleging neg­
ligence on the part of the defendant and the other alleging 
that defendant created a nuisance which resulted in in­
juries to the plaintiff (S.A. 60-64). Prior to trial, defen­
dant filed a motion to dismiss on the ground of failure 
to state a cause of action and a general denial of all 
material allegations in the complaint. In addition, de­
fendant raised an affirmative defense, viz., that at all 
times complained of, the defendant was engaged in acts 
protected by the First and Fourteenth Amendments to 
the Constitution of the United States and hence could not 
be held liable in damages (S.A. 55-56). At the close of 
the evidence in the case, defendant moved to amend its 
answer to raise the additional defense of contributory 
negligence and assumption of risk by the plaintiff. The 
district court allowed the motion and instructed the jury 
on that question (S.A. 322).

At the trial defendant made an oral motion for a di­
rected verdict at the close of the plaintiff’s evidence (S.A. 
260). It renewed its motion at the close of its case and 
before the matter was submitted to the jury. This motion 
was taken under advisement by the court and was subse­
quently reduced to writing and filed with the court (S.A. 
324; S,A. 68). The jury found for the plaintiff on both 
counts and returned a verdict of $45,000 (S.A. 66-67). 
Within ten days after the return of the verdict, the de­
fendant filed a motion for judgment notwithstanding the 
verdict, renewing its motion for a directed verdict made 
at the close of the testimony, or, in the alternative, for 
a new trial (S.A. 74-82). The district court denied all the



4

motions of the defendant on the condition that the plain­
tiff remit the amount of his medical costs since he was 
treated at a Veterans Administration hospital (S.A. 84- 
85). Upon a remittitur being made by the plaintiff, a judg­
ment was entered in the amount of $41,000. A timely no­
tice of appeal was tiled by the defendant and a supersedeas 
bond was filed and approved by the district court in the 
amount of $45,000 (S.A. 87-90).

Statement of the Facts 

Introduction

In February, 1966, demonstrations were held on the 
premises of the Liberty Supermarket, a store in the Negro 
section of Birmingham, Alabama. The demonstrations 
were to protest an incident which had occurred at the 
Supermarket sometime earlier in which Negro customers 
had been arrested following an altercation with store 
policemen. In addition, the demonstrations protested the 
lack of employment of Negroes in the store, approximately 
seventy-five percent of whose customers were Negroes. 
On February 22, 1966, plaintiff, who is also a Negro, went 
to Liberty Supermarket and parked his car in the lot 
while a demonstration was taking place. While he re­
mained in his car, another car driven by a white customer 
left the parking lot. In so doing, it drove through a line 
of marchers who, at the time, were proceeding through 
the lot. When the car got to the exit and was waiting 
for automobile traffic to allow him to proceed, a group of 
demonstrators and pickets on the sidewalk came up to the 
car. Subsequently, the following events, which will be set 
out in more detail below, took place. The white driver, who 
had no connection with S.C.L.C. or with the demonstration, 
fired from seven to eight shots into the crowd of Negro



5

demonstrators. One of the bullets bit and injured tbe 
plaintiff who bad gotten out of bis car to observe what 
was happening.

One year later, tbe plaintiff filed the present action 
against tbe Southern Christian Leadership Conference, 
alleging that it was responsible for bis injuries. The com­
plaint as amended sought recovery on two bases. One was 
that defendant SCLC had negligently caused a condition 
to arise which resulted in injuries to him and thus violated 
its legal duty to insure his safety. The second count al­
leged that SCLC had created a nuisance which it should 
have known would result in danger to persons in the 
vicinity and, as a result of which, plaintiff suffered in­
juries.

At trial, a number of matters were in dispute. These 
included: first, the extent to which, if any, SCLC was 
engaged in the planning, sponsoring, or carrying out of 
the demonstration; second, the events of February 22nd, 
plaintiff’s actions on that evening and the participation, 
if any, of any persons connected with SCLC in the dem­
onstrations then; and third, whether the actions of SCLC’s 
employees, to the extent they participated in the Liberty 
Supermarket demonstrations at all, were protected by the 
First Amendment to the Constitution of the United States 
and hence could not result in civil liability.

The remainder of this statement of facts will be divided 
into two main parts. The first will deal with the back­
ground of the demonstrations at the Liberty Supermarket 
and evidence regarding SCLC’s participation in them; the 
second will deal specifically with the events of February 
22, 1966, the evening on which plaintiff was injured.



6

1. The Liberty Supermarket Demonstrations

Liberty Supermarket is located in an area in Birming­
ham, Alabama, in which Negroes primarily reside. Most 
of its customers are Negro residents of the area. Early 
in 1966 an incident occurred at the Supermarket in which 
a number of Negro shoppers were arrested after an alter­
cation with a store policeman. Considerable feeling was 
generated within the Negro community because of the 
incident and because no Negroes were employed by the 
store as full-time cashiers (S.A. 264).

As a result, meetings were held at various Negro churches 
at which persons attending were urged to participate in 
demonstrations at the store to protest the conditions there. 
Witnesses testified concerning meetings during the week 
of February 18, 1966 (S.A. 98; 111; 126). The meetings 
were described as being regularly scheduled evening meet­
ings whose purpose was to discuss matters of interest to 
the Negro community, particularly relating to civil rights 
(S.A. 108-109). Apparently the issues of greatest impor­
tance at the time were the Liberty Supermarket matter and 
a voter registration drive being conducted in Birmingham 
by the defendant-appellant, Southern Christian Leadership 
Conference (S.A. 121; 135).3

Various speakers would address the meetings with re­
gard to the matters of interest, including both the regis­
tration effort and the demonstrations at Liberty. Predom­
inant among these were ministers of local Negro churches, 
including the Beverends J. E. Lowery, Fred Shuttlesworth, 
and Edward Gardner (S.A. 104; 109; 127). These three 
were also members of or connected with the Interdenomi­

3 The ultimate result of the voter registration drive was the 
sending of federal registrars into Birmingham pursuant to the 
Voting Rights Act of 1965.



7

national Ministerial Alliance of Greater Birmingham and 
Jefferson County and the Alabama Christian Movement 
for Human Rights (S.A. 128; 264; 277). Both organiza­
tions are composed primarily of local Negro ministers.

In addition, the three ministers are associated in some 
capacity with the Southern Christian Leadership Confer­
ence (S.C.L.C.).4 Reverend Lowery was, in 1966, on the 
board of directors of the corporation and was, at the time 
of trial in this case, chairman of the board (S.A. 261-62). 
Reverend Shuttlesworth was secretary of the corporation, 
and Reverend Gardner was a member of a local planning 
committee when S.C.L.C. held its national convention in 
Birmingham in August, 1965 (see, Plaintiff’s Exhibit 1,
pp. 6, 11).

Reverends Gardner and Lowery testified directly, how­
ever, that their activities with regard to the Liberty Super­
market demonstrations were in no way connected with 
their relationships with S.C.L.C. Rather, they were act­
ing as private citizens, as ministers, and as leaders of 
the Birmingham Negro community and of the local organ­
izations (S.A. 264; 152; 269-272). As to Reverend Shuttles­
worth, the police officer called as a witness by the plain­
tiff testified that there was nothing in his notes of Shut- 
tlesworth’s speech that indicated that he was speaking 
about Liberty Supermarket with relation to S.C.L.C. 
Rather, “his speech was made as an individual.” (S.A. 
135.)

All three ministers participated in organizing and car­
rying out the demonstrations at Liberty. They spoke at 
their and others’ churches urging persons to take part 
and led demonstrations on various days. Reverend Gard­

4 S.C.L.C. is a corporation organized under the laws of the State 
of Georgia, with its offices in Atlanta.



8

ner was in charge of the pickets on the night of the in­
cident here in question, February 22, 1966. He testified 
that the pickets had been instructed to be nonviolent and 
peaceful, and to the best of his knowledge these instruc­
tions were carried out (S.A. 274-275). Reverend Lowery 
testified that although he had picketed on other occasions 
at Liberty he was not there on February 22nd when the 
shooting of the plaintiff took place (S.A. 144-145; 155-156). 
There was testimony that Reverend Shuttlesworth was at 
the scene of the shooting, but after it took place. It was 
not clear whether he arrived before or after the incident 
(S.A. 242-243; 256-257).

The evidence regarding the connection of SCLC with 
the Liberty Supermarket demonstrations was as follows. 
SCLC is a corporation organized under the laws of the 
State of Georgia. It is not a membership organization, 
but, like other corporations, has officers and employees 
(S.A. 288-289). An employee of SCLC, Hosea Williams, 
was in Birmingham at the time. Mr. Williams is director 
of Voting Registration for the corporation (see Plaintiff’s 
Ex. 1, p. 12). He had been assigned to Birmingham, along 
with a few SCLC workers, by the corporation as part of 
a voter registration campaign being conducted by it in 
Alabama and Birmingham during the last months of 1965 
and the first months of 1966 (S.A. 263-264). The testimony 
was that this was the only activity he had been sent to 
Birmingham to carry out.

In furtherance of the registration drive, Mr. Williams 
would appear at meetings in various Negro churches in 
the community. On February 18, 1966, he spoke at such a 
meeting when both voter registration and Liberty Super­
market were discussed. During his speech he talked about 
voter registration, in connection with which, according to



9

a police officer who attended, he referred specifically to 
SCLC (S.A. 120-121). He also spoke about Liberty Super­
market, but made no reference to SCLC (S.A. 123). He 
called for persons to go to the Supermarket the next day, 
February 19th, and to demonstrate in order to end dis­
criminatory hiring practices (S.A. 105). In addition, there 
was some testimony that Mr. Williams actually went to 
the Supermarket to take part in demonstrations at some 
unspecified date (S.A. 140). However, there was no evi­
dence that he, or any other SCLC employees, were there 
on February 22nd before the incident in question here, 
but only that two employees, not including Mr. Williams, 
were seen there some time after the shooting in the crowd 
that had gathered (S.A. 243-44; 255). Indeed, all who 
testified as to the events of February 22nd said that they 
had not seen him there. Nor was there any testimony 
that he or any other SCLC employees had been involved 
directly in the organization or direction of the demon­
strations on that particular evening.

In addition to this testimony, there was introduced into 
evidence by plaintiff a copy of a press release that had 
been handed out prior to the shooting, on February 18 
(Plaintiff’s Exhibit 26). The release deplored the in­
cident involving customers and a store policeman and 
complained of the lack of employment of Negroes as 
cashiers. The release stated that negotiations had failed 
and called for the Negro community to withdraw from 
patronizing the store until certain demands were met. At 
the bottom of the release appeared five names, including 
Hosea Williams’, Reverend Lowery’s, and Reverend Gard­
ner’s. No organizational affiliations were given, nor was 
any claim made that the five were speaking on behalf of 
any organization (S.A. 251-252).



10

A television reporter testified that at some time during 
this period, either before or after the shooting, he spoke 
with Mr. Williams. He stated that Mr. Williams told 
him that:

There had been a group picketing there who Hosea 
indicated to us, or told me that they had some in­
volvement with, in other words, he said it was 
S.C.L.C............ (S.A. 250).

Finally, there was introduced into evidence, as plain­
tiff’s Exhibit 5, a button showing two clasped hands with 
“ SCLC” and “Southern Christian Leadership Conference” 
on it. A  police officer testified that he had seen persons 
engaged in the demonstrations wearing such buttons and 
had picked up one from the supermarket’s parking lot 
(S.A. 163). Reverend Lowery testified that the buttons 
had been donated to SCLC and were handed out freely 
across the country at public meetings. Thus, anyone at­
tending such meetings could acquire a button and wear it 
at any time (S.A. 267-268).

Eventually the dispute between the Negro community 
and the supermarket was resolved through negotiations. 
A  Negro attorney who handled the negotiations for Liberty 
testified that he negotiated solely with representatives 
from the local community. At no time were representa­
tives of SCLC involved, and SCLC was not a party to 
the final agreement (S.A. 291).

2. The Events o f February 22, 1968

On the evening of February 22, 1966, there were demon­
strations at Liberty Supermarket. Sometime during the 
day or early evening a group of pickets began to march 
along the sidewalk. According to a witness, Mr. Simon



11

Armstrong, who relieved another person on the picket 
line at about eight o’clock, the picketers remained on the 
sidewalk since they had instructions not to go on the 
supermarket premises (S.A. 300-301). Reverend Gardner 
was in charge of these pickets, and he testified that they 
were under instructions to be nonviolent and peaceful at 
all times (S.A. 274-275). There was no evidence that any 
employees of SCLC participated in, directed, or controlled 
any of the demonstrations that day, or that any were 
on the scene until after the shooting took place. Indeed, 
Mr. Armstrong testified that he was there because he had 
heard his pastor and other local ministers ask for people 
to picket (S.A. 299).

Shortly before 10:00 p.m. another group of Negroes, 
variously estimated as being between 75 and 150 strong, 
marched through the parking lot (S.A. 159; 168-169). At 
the same time an automobile driven by a white man, who 
apparently had just left the supermarket, began moving 
out towards the exit to the street. It was testified that 
the motor was loud and was being raced (S.A. 160-161). 
When the driver came to the group marching through the 
lot, he slowed the car, raced its motor, and passed through 
the line of marchers (Ibid). One witness testified that 
some demonstrators had to jump out of the car’s path 
(S.A. 179). Two witnesses testified that some people in 
the group yelled something at the car as it passed through 
(S.A. 161; 175). The car proceeded through the exit from 
the parking lot until it was blocking the sidewalk. It 
stopped, evidently waiting for a break in the traffic along 
the street so that it could proceed (S.A. 179).

At this point, a number of things occurred. The per­
sons who had been picketing had ceased, and were walking 
up the sidewalk in a group to go to a prayer meeting. The 
automobile was blocking their way and they stopped until



12

it passed (S.A. 301-304). One witness, who was within five 
or six feet away, testified that he heard no one shout at 
the ear at this point and saw no one touch it (S.A. 305). 
At the same time, persons from within the parking lot 
came up to the car (S.A. 161-162). Apparently, this group 
included persons who had been in the line of march through 
which the car had passed as well as at least some persons 
who were merely watching the demonstrations (S.A. 169; 
179).

A  number of witnesses testified that they saw the rear 
lights of the car moving up and down and back and forth. 
They surmised from this that the car was being rocked 
by people in the crowd around the car (S.A. 175; 161). 
At least one of the witnesses, however, admitted that the 
movement of the lights could have been caused by the 
driver making the car go backwards and forwards (S.A. 
172-173). Another witness testified that this in fact was 
what the driver was doing (S.A. 312). Witnesses also 
testified that they heard persons in the crowd shout “ get 
him,” while one witness said that there were no shouts 
prior to the shooting but that afterwards some persons 
shouted “get the license number” as the car drove away 
(S.A. 200; 313).

In any event, while the crowd was around the car the 
driver fired a volley of about five shots into it (S.A. 199). 
There was a pause of some indeterminate length and 
then three or four more shots were fired, making eight 
or nine in all (S.A. 166; 175; 199). About five persons 
were wounded by the shots, including a witness at the 
trial, Mr. Simon Armstrong, and the plaintiff-appellee, 
Mr. William J. Maxwell. There was no evidence that the 
gunman was connected in any way with S.C.L.C. or with 
the demonstration.



13

The plaintiff testified as to his own acts on the evening 
as follows. He went to Liberty Supermarket at about ten 
minutes to ten ostensibly to do some shopping (S.A. 190). 
When he arrived at the store he parked a short distance 
inside the entrance and close to the demonstrators, even 
though there were only eight to ten other cars and he 
could have gotten close to the store itself (S.A. 199; 167). 
Even though the store closed at ten o’clock, the plaintiff 
did not get out of his car to proceed with his shopping. 
Instead, he remained in his car for five to ten minutes 
admittedly watching the demonstrators (S.A. 207). He 
saw the other automoble go through the line of marchers 
and stop at the exit. He testified that he saw the people 
come up around the car and rock it. He then heard five 
pistol shots fired (S.A. 208-209). Instead of remaining in 
his car where he was safe, he got out, apparently trying 
to see what was going on. There was a second volley of 
shots, and he was hit by one of the bullets (S.A. 208-209).

The plaintiff received serious injuries to his internal 
organs which required two operations at the local Veterans’ 
Administration Hospital. As a result he was not able to 
work for a considerable period of time during which his 
employer lent him twenty-five dollars a week which he 
has been paying back since he returned to work. He is 
now working as a truck driver and laborer, at which job 
he from time to time lifts fairly heavy objects. He is re­
ceiving a higher pay now than he was before the shooting 
(S.A. 193-198; 201-202). A  physician testified that it could 
not be said whether plaintiff would have to continue having 
a drainage tube in his body, since often such wounds heal 
sufficiently after the passage of time (S.A. 224-226). No 
evidence was introduced as to whether plaintiff’s lifespan 
or earning capacity had been shortened, although he did 
testify that he still had difficulty sleeping.



14

ARGUMENT

Introduction

Basically, the defendant-appellant contends that in this 
case the plaintiff has sued the wrong defendant. As it has 
been shown by the statement of facts, and as it will be more 
fully developed below, the defendant Southern Christian 
Leadership Conference (S.C.L.C.) was not responsible 
either in fact or in lawT for plaintiff’s injuries. The proper 
defendant should have been the man—whose identity is 
known—who fired the shot that injured William Maxwell.

One can only speculate as to why SCLC was sued. It was 
probably assumed that a judgment could be won against a 
prominent civil rights organization in a case involving a 
civil rights demonstration. SCLC, then led by the late Dr. 
Martin Luther King, Jr., had been active in Alabama over 
a period of time attempting to achieve racial justice, spe­
cifically in the area of voting. The action was brought 
against it even though it is clear that the demonstrations 
were planned, led, and carried out by people in the local 
community because of grievances that affected them and 
which they felt should be corrected.

Thus, this case raises an important and significant issue 
—whether an organization can be subjected to onerous legal 
judgments on no more basis than its continuing efforts, 
protected by the constitutional guarantees of freedom of 
speech and assembly, to achieve racial justice. The future 
of attempts to bring about political and social change in 
our society by legal means may well hang in the balance.

In arguing that the judgment below must be reversed 
and that either a judgment for defendant or a new trial 
must be granted, appellant SCLC recognizes its burden 
when faced with an adverse jury verdict. However, deci­



15

sions of this Court make it clear that even a jury verdict 
must comport with the law and the evidence. Brazier v. 
Cherry, 293 F.2d 401 (5th Cir. 1.961); Nesmith v. Alford, 
318 F.2d 110 (5th Cir. 1963); McPherson v. Tamiami Trail- 
ways, Inc., 383 F.2d 527 (5th Cir. 1967). In arguing why 
the verdict was erroneous, there will be discussed issues of 
traditional private and business law—questions of the au­
thority of an agent, probable cause, independent interven­
ing cause, etc. However, again, the real issue here is wheth­
er the effective exercise of rights protected by the First 
Amendment may be crippled by the stretching of a tenuous 
and fragile chain of causation.

I.
The Evidence Does Not Show That Any Agents or 

Employees o f  Appellant Were Authorized to Take Part 
in Its Behalf in the Demonstrations in Question Here.

The defendant-appellant, SCLC, is a corporation. As 
such, of course, it can act only through its agents, employ­
ees, and officers. See, e.g., Trans-America Insurance Co. v. 
Wilson, 262 Ala. 532, 80 So.2d 253 (1955). In this part of 
the argument, appellant will show that there was insufficient 
evidence to support any finding that any agent was acting 
within the scope of his authority insofar as he may have 
participated in the Liberty Supermarket demonstrations. 
Therefore, no tort liability could be imposed on the cor­
porate defendant. In part II of the argument it will be 
shown that even assuming authority to act on behalf of 
SCLC, the acts of its employees were not sufficient to estab­
lish responsibility for plaintiff’s injuries.

A. The law of Alabama, which governs here, as to the 
tort liability of a corporation is essentially the same as



16

other states and may be briefly stated. A corporation can 
act only by and through its duly authorized officers and 
agents. However, the fact that the persons whose actions 
are complained of are employees of or are connected in 
some way with the corporation is not enough, The corpo­
ration can he held liable in tort only as a result of acts by 
agents done within the line or scope of the duties and au­
thority given by it. Trans-America Insurance Co. v. Wilson, 
supra. Moreover, even where the activities of the employee 
or agent are similar to those within the scope of his em­
ployment, if they are shown to be done for or in conjunc­
tion with others and not within the scope of employment, 
the corporation will not be liable. Martin v. Anniston 
Foundry Co., 259 Ala. 633, 68 So.2d 323, 327 (1953). See 
also, Perfection Mattress & Spring Co. v. Windham, 236 
Ala. 239, 182 So. 6, 8 (1938).

And, as was stated in an early decision:

The principal is responsible, not because the servant 
acted in his name, or under color of his employment, 
but because the servant was actually engaged in and 
about his business and carrying out his purposes. Re­
public Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 
328, 329 (1915).

If, on the other hand, the employee is not engaged in the 
corporation’s business, but is “ impelled by motives that are 
wholly personal to himself,” then his commission of a tor­
tious act is purely his personal wrong. Ibid. See also, Wells 
v. Henderson Land & Lumber Co., 200 Ala. 262, 76 So. 28 
(1917).

Finally, the burden of introducing competent evidence 
demonstrating that the employee was acting within the 
scope of his authority is on the plaintiff. Trans-America 
Insurance Go. v. Wilson, 262 Ala. 532, 80 So.2d 2oo (19o5).



17

Thus,

[T ]o authorize the submission of the question to the 
jury, the evidence must tend to show that the wrong 
was committed by the agent while he was executing 
his agency, and not from a motive or a purpose of his 
own, having no relation to the business of the master. 
Republic Iron & Steel Go. v. Self, 192 Ala. 403, 68 So. 
328, 329 (1915).

B. The issue thus presented is, in light of the above 
principles, was there evidence showing that any persons 
directed or led the demonstrations involved here while act­
ing as agents of defendant-appellant and within the scope 
of their employment and the authority given them by SCLC. 
The testimony at trial focused on two groups of persons 
who might be considered to be agents. The first consisted 
of the local Negro ministers, Reverends Lowery, Gardner, 
and Shuttlesworth. The second consisted of individuals who 
admittedly were SCLC employees, Hosea Williams and two 
or three persons working under him on a voter registration 
drive.

Whether the three ministers were acting as agents of 
SCLC may be quickly disposed of. Reverend Gardner, who 
was in charge of the demonstrations on the night in ques­
tion, February 22nd, testified positively that he was acting 
as a private citizen, as a local minister, and with and on 
behalf of local organizations of ministers. He denied that 
he was working with or on behalf of SCLC. There was no 
evidence whatsoever that he was an employee or officer of 
the corporation. The only connection he was shown to have 
had with it was that in the summer of 1965 he was a mem­
ber of a local planning committee in connection with SCLC’s 
national convention held in Birmingham that year (PI. Ex. 
1, p. 11). There was nothing to show any continuing au­



18

thority of any sort, much less authority in February of 
1966 to conduct the Liberty Supermarket demonstrations in 
the name of or in behalf of SCLC.

As to Reverend Shuttlesworth, it is clear that he was 
an officer of SCLC, its secretary, at the time of the demon­
strations. However, not only is there no evidence that he 
was acting in that capacity with regard to the demonstra­
tions, but the testimony of plaintiff’s witness, as set out in 
the statements of facts, supra, was to the contrary. Rev. 
Shuttlesworth was a minister in Birmingham and as such 
was active in the affairs of the city, particularly as they 
related to equal civil rights. A police officer, testified that 
he heard Shuttlesworth speak at a church on February 21 
regarding Liberty Supermarket. The police officer testified 
directly that Shuttlesworth spoke not with relation to SCLC 
or in his capacity as an officer thereof, but “as an individ­
ual” (S.A. 135).

Reverend Lowery was on the board of directors of SCLC 
in February, 1966, and was chairman of the board at the 
time of the trial here. Again, he is a local minister and is 
a member of local organizations active in civil rights activi­
ties. He testified positively that at no time did he partici­
pate in the demonstrations as a representative or agent of 
SCLC. His actions were as a private individual and in con­
junction with other local ministers. No evidence was intro­
duced showing that he had any authority to act on behalf 
of SCLC or that he at any time held himself out as doing so.

Hosea Williams and the two or three other SCLC em­
ployees may be dealt with together, since the latter were 
apparently sent to work with him on voter registration in 
Birmingham. Mr. Williams is an employee of the corpora­
tion, with the title of director, voter registration (PL Ex. 1, 
p. 12). Defendant-appellant does not deny either that W il­
liams is an employee of SCLC or that he, as an individual,



19

participated in some degree and at some time in the Liberty 
Supermarket demonstrations. However, the cases cited 
above make it clear that that is not enough to establish 
liability on the corporation’s part. We do deny that he so 
participated on behalf of the corporation or that he was 
authorized to do so. His acts were done as an individual 
and not in furtherance of his employer’s affairs or within 
the scope of his employment.

Indeed, there was only one item of testimony that pur­
ported to connect Williams’ participation in the demon­
strations with SCLC. Mr. Jim Cunningham, a local tele­
vision reporter, testified that he had spoken to Williams 
sometime during this general period, although he could not 
say whether it was before or after the shooting. He said 
that Williams told him that “they” had been picketing at 
Liberty, and that:

There had been a group picketing there who Hosea 
indicated to us, or told me that they had some involve­
ment with, in other words, he said it was S.C.L.C. 
(S.A. 250).

This vague statement, however, is not enough to estab­
lish, as a matter of law, that Williams was acting within 
the scope of the authority given him by SCLC. As a gen­
eral rule, of course, an agent’s out-of-court declarations 
are not competent against the principal to show scope of 
authority unless there is other evidence to show that the 
statement itself was within the authority of the agent to 
make. Wade v. Brisker, 233 Ala. 585, 173 So. 64. Although 
this rule has been relaxed somewhat in Alabama, it has been 
relaxed in cases where other evidence has shown the general 
scope of the agent’s authority, particularly where ques­
tions of contractual liability and ostensible authority wTere 
involved. See, e.g., Wilson <& Co. v. Clark, 67 So.2d 898



20

(1953). Here, of course, all the direct evidence as to the 
scope of Williams’ authority as given by SCLC clearly 
establishes that he was sent to Birmingham to act in his 
capacity as director of voter registration. In the face of 
this clear evidence, the vague recollection that Williams 
“ indicated” that “they” had “ some involvement with” the 
demonstrations is simply insufficient as a matter of law to 
carry plaintiff’ s burden of proof that an employee or agent 
of the corporation was acting on its behalf and under au­
thority given by it so as to establish responsibility for the 
demonstrations on the part of SCLC.

One or two other items should also be mentioned. Plain­
tiff introduced as Exhibit 5 a button bearing the words 
“Southern Christian Leadership Conference” with clasped 
hands, which was said to be representative of buttons some 
demonstrators were wearing. The testimony of Reverena 
Lowery, however, made it clear that these buttons had been 
distributed at public meetings over a long period of time. 
The wearing of them did not indicate employment, agency, 
or any connection with SCLC, but only that the wearer 
subscribed to its principles of achieving racial justice 
through non-violent means. Finally, it was testified at first 
that a copy of the February 18 release with Hosea W il­
liams’ name, together with those of four others, was picked 
up at an “ SCLC office.” The same witness subsequently 
testified, however, that a number of organizations, includ­
ing local ones, used the facilities of the office, particularly 
to reproduce statements. Thus, it could not be said that 
the statement was put out by SCLC (S.A. 251-252).

To summarize this part of the argument, the overwhelm­
ing thrust of the testimony at trial was that the demon­
strations at Liberty Supermarket arose out of incidents 
that affected the local Black community; in response, local



21

ministers, acting as such and as representatives of local 
organizations, decided to demonstrate at the store; the min­
isters urged people to participate, and organized, led, and 
directed the demonstrations. At the time, SCLC had in 
Birmingham persons whose job was voter registration and 
who had been sent there for that specific purpose. Indi­
viduals, who were such SCLC employees, decided, as indi­
viduals, to participate in the locally organized and run 
demonstrations. They were not authorized to do so in the 
name or on behalf of SCLC, and there is no legally suffi­
cient evidence that they did so. The only connecting link 
of any sort was an unauthorized, out-of-court, vague state­
ment by one employee.

Thus, the court below was in error in refusing to direct 
a verdict for the defendant corporation or to render a judg­
ment notwithstanding the verdict. See, McPherson v. Tami- 
ami Trail Tours, Inc., 383 F.2d 527 (5th Cir. 1967). And 
in light of the direct and positive evidence against any 
authority on the one hand, and the vague and ambiguous 
piece of testimony on the other, the trial court was also in 
error in refusing to grant a new trial. Although the denial 
of a new trial is not generally reviewable on appeal, it is 
reviewable where there has been an abuse of discretion. 
Here there was such an abuse. As has been shown, not only 
was there little or no evidence showing agency, but the 
overwhelming weight of the evidence was against such a 
finding Cf., Whiteman v. Pitrie, 220 F.2d 914, 919 (5th 
Cir. 1955).



22

II.

The Evidence Was Insufficient in Law and Fact to 
Establish Liability for  Plaintiff’ s Injuries Because of 
the Acts of SCLC Employees Either for Negligence or 
for the Establishment o f  a Nuisance.

For the purpose of this argument, it will he assumed 
that the employees of SCLC, viz., Hosea Williams and 
those working under him, were given authority to partici­
pate to some extent on the corporation’s behalf in the 
Liberty Supermarket demonstrations.6 However, even un­
der that assumption, liability on the part of SCLC for the 
injuries sustained by plaintiff was not established by the 
evidence.

It is established law, in Alabama as in other jurisdic­
tions, that in order for a plaintiff to recover either for 
negligence or for nuisance, he must establish that his in­
juries have occurred as a result of acts of the defendant 
which it should have reasonably foreseen would have re­
sulted in the injuries. There must be shown to have been 
an unbroken chain of causation from the acts to the injury. 
See, e.g., Sullivan v. Alabama Power Co., 246 Ala. 262, 20 
So.2d 224 (1945); Morgan v. City of Tuscaloosa, 268 Ala. 
493, 108 So.2d 342 (1959).

The evidence here falls far short of this standard. It 
must be kept in mind precisely what it was that SCLC’s 
employees were shown to have done. First, Williams, to­
gether with others, issued a statement on February 18 
stating that the Negro community would withdraw patron­

6 No such assumption is made as far as the local ministers are 
concerned, however. The evidence, as shown above, is uncontra­
dicted as to the basis for their actions, viz., that they were acting 
as individuals and in conjunction with local organizations.



23

age from the store as a result of certain incidents until 
the store adopted certain policies (PI. Ex. 26). Second, he 
spoke at a church meeting that evening urging people there 
to follow him the next day, February 19, to take part in 
a picket line. And third, at some unspecified dates he, with 
other persons who were also SCLC staff employees, took 
part in picketing.

There was no evidence that he or any other SCLC work­
ers were at Liberty Supermarket on February 22 or took 
part in, led, or directed the picketing then.6 Reverend 
Gardner, a local minister acting independently of SCLC, 
testified that he was in charge of the demonstrators on 
February 22 and that they were under instructions to be 
peaceful and non-violent at all times (S.A. 274-275). A 
demonstrator, who was one of those shot, testified that he 
was there because his pastor and other local preachers 
had been picketing and had asked for help (S.A. 299).

After picketing had been going on for some time on that 
evening, on the sidewalk and apparently peacefully and 
without incident, a number of things occurred. A group 
of marchers came through the parking lot. A  car, driven 
by a white customer drove through the line of march, racing 
its engine and forcing some persons to jump aside. It 
went out of the exit and stopped, blocking the sidewalk 
while waiting for the street traffic to clear. A  group of 
picketers, on their way to a prayer service came up to the 
car, as did some of those from the group of marchers. 
There was testimony that some people in the group began 
to rock the car, in direct contradiction to the instructions 
they had been given by Reverend Gardner. The driver

6 There was testimony that two SCLC employees were seen on the 
premises after the shooting as part of a “ large crowd” of persons 
from the community that “congregated moments after the shoot­
ing” (S.A. 244).



24

fired five shots into the crowd, paused, then fired three or 
four more times. Plaintiff, who had been sitting in his car 
watching the demonstrators and the entire series of events 
for five or ten minutes, got out after the first volley of 
shots, evidently to better see what had happened. As a 
result, he was hit by one of the second series of bullets.

Thus, in this case there was only the most tenuous and 
speculative chain of causation between the defendant 
and the actual act that caused injury to the plaintiff. 
There was no evidence that SCLC had any respon­
sibility for or connection with the February 22 demon­
strations at all or indeed that it had acted negligently 
at any time. Local people were involved in the planning 
and leading of demonstrations throughout this period, 
and the evidence is clear that they organized and led 
the one on the date in question. SCLC’s participation, 
assuming again that there was any, generally was limited 
to one of its employees calling for people to take 
part in a demonstration three days earlier and his dem­
onstrating himself at some earlier unspecified date. Thus, 
S.C.L.C. could not be held responsible for any nuisance, 
if there was any, created on February 22.

Moreover, the persons who led the February 22 demon­
strations had issued orders for the participants to be 
peaceful and nonviolent. Apparently, these orders were 
being carried out when the automobile pushed its way 
through a group of demonstrators, thus touching off the 
series of events that culminated in shots being fired. Cer­
tainly it is stretching the chain of causation far past its 
breaking point to hold SCLC responsible, in light of what 
it was actually shown to have done, for the driver’s initial 
conduct, the response of one group of marchers in viola­
tion of specific instructions to it, the unforeseeable over­



25

response of the driver in firing into the crowd, and the 
actions of plaintiff in deliberately removing himself from 
his car, a place of safety, and, out of curiosity about the 
first volley, placing himself in a position where he was 
in direct danger of being shot.

Again, the principles of law that must govern are clear. 
A  remote cause of an injury, where there are independent 
intervening causes is not actionable. See Morgan v. City 
of Tuscaloosa, 268 Ala. 493, 108 So.2d 342 (1959). More­
over, when the plaintiff voluntarily placed himself in a 
position that he should have foreseen to be dangerous as 
a reasonable man, he assumed the risk inherent in the 
situation and he may not recover, at least not from SCLC.7 
See Foster & Creighton Co. v. St. Paul Mercury Indemnity 
Co., 264 Ala. 581, 88 So.2d 825 (1956); Walker County v. 
Davis, 221 Ala. 195, 128 So. 144 (1930).

In sum, there simply was no evidence showing a con­
tinuing unbroken sequence of events from acts of SCLC 
to plaintiff’s injuries. The chain is too tenuous to allow 
recovery under any standard of law and it was error to 
allow the matter to go to the jury, not to enter a judg­
ment notwithstanding the verdict, and not to have granted 
a new trial (see eases cited supra). Similarly, there was a 
total lack of evidence showing responsibility for the crea­
tion of a nuisance on the date in question or at any other 
time.

Reverend Lowery, testifying as a member of the board 
of SCLC, stated flatly that Williams was sent to Birming­
ham to act in the capacity in which he was employed by 
SCLC, viz., director of voter registration. He, and those 
working under him, were to conduct a voter registration

7 Of course plaintiff’s acts would not have absolved from liability 
the person who deliberately fired the shots that injured him.



26

drive in Birmingham, which they did in late 1965 and 1966 
(see, Plaintiff’s Ex. 16). This, according to Lowery, was 
all that Williams was authorized to do on behalf of SCLC, 
and further, this was all he did do as an employee of the 
corporation.

Again, it is not denied that Williams took part in the 
Liberty Supermarket demonstrations, working with the 
local ministers and individuals in the Black community. 
His participation, as shown by the evidence, consisted in 
urging persons to go down to the store and demonstrate 
at a church meeting on February 18, in issuing a statement 
together with four local ministers, also on February 18, 
and in actually taking part in one or two demonstrations 
on some unspecified dates. In his speech on the 18th he 
called for persons to go down with him on the next day, 
February 19, although there was no direct evidence plac­
ing him at the scene on that day. It is clear, however, 
that he was not at the store on the night of the shooting, 
i.e., February 22.

The police officer who testified concerning the February 
18 speech stated that his notes mentioned SCLC only in 
connection with the voter registration drive and not with 
regard to Liberty Supermarket (S.A. 120-123). Similarly, 
the statement issued on February 18 made no mention of 
SCLC and did not indicate any affiliation by Mr. Williams’ 
name. Indeed, a local minister, Rev. N. IT. Smith, who 
was not shown to have any connection with defendant, 
was designated chairman of what was evidently an ad hoc 
group (PL Ex. 26).



27

III.
The Evidence Was Insufficient to Support the Amount 

of Damages Awarded.

The jury rendered a verdict in the amount of $45,000. 
Defendant-appellant moved that the amount be set aside 
and a new trial awarded on the question of damages in 
that actual damages were proven only in the amount of 
$4,107.00 (S.A. 81-82). Subsequently, the Court ordered a 
remittor in the amount of the hospital expenses, i.e., $3057, 
on the grounds that a veteran was not entitled to recover 
the value of hospital care provided free by the government 
(S.A. 84-85). The resulting judgment in the amount of 
$41,943 was then affirmed despite the motion for a new 
trial.

Although a denial of a motion for a new trial on the 
ground that the damages awarded were excessive is not 
ordinarily reviewable, this Court has ordered a new trial 
when there appeared to be no basis in the evidence for 
the amount. Thus, in Whiteman v. Pitrie, 220 F.2d 914 (5th 
Cir. 1955), a judgment in the amount of $30,000 was held 
excessive and a new trial ordered.

The facts in Whiteman were similar to those in this 
case. There, no substantial loss in future earnings was 
shown, since the plaintiff was employed at a higher paying 
job than before the accident. Here, plaintiff testified that 
at the time of the shooting he was averaging between $75 
and $80 per week. At the time of trial he was making 
about $106 per week and had been for two months. He 
was not able to work from late February 1966 until around 
the first week of June, 1966, or for about sixteen weeks. 
At $75 per week his loss of earnings would be about $1200.



28

In Whiteman, there was no loss of earnings since the 
plaintiff’s employer continued to pay him wages.

In Whiteman, the plaintiff suffered substantial perma­
nent loss of the use of one arm. Here, there was little 
evidence of any permanent loss or damage. Plaintiff still 
had a drainage tube in him, but his doctor testified that 
it could not be said to be a permanent condition (S.A. 
224). Plaintiff was still able to do his work as a truck 
driver which included handling heavy articles. He testified 
that his injury bothered him at times at night. There was 
no evidence as to permanent dimunition of earning power, 
or shortening of either his work or physical life.

Despite the showing of actual damages only in the 
amount of $1200, the Court upheld an award of more than 
$41,000. Although some of this might be accounted for 
as compensation for pain and suffering, in light of the 
failure to show permanent injury or any impairment of 
earning capacity, the judgment must be viewed, as was 
the one in Whiteman, to be the product of sympathy or 
bias on the part of the jury or to be in the nature of 
punitive damages. As this Court made clear there, these 
are not the proper bases for the assessment of damages 
and defendant-appellant is entitled to a new trial on that
issue.



29

IV.

The Granting of Damages Against SCLC Here Con­
stituted an Abridgement of Rights of Free Speech and 
Assembly Protected by the First and Fourteenth Amend­
ments.

As shown in Part II, supra, the verdict of the jury below 
cannot stand in the face of accepted and standard prin­
ciples of tort liability. When viewed in light of constitu­
tional requirements, the judgment of the court below must 
certainly be reversed. Defendant-Appellant claimed as a 
defense that during the time in question here its actions 
were protected by the First and Fourteenth Amendments’ 
guarantees of freedom of association, assembly and speech. 
These points were argued to the trial court as a matter of 
law in defendant’s motions for directed verdict, judgment 
notwithstanding the verdict, or for a new trial.

It is clear under decisions by the United States Supreme 
Court that constitutional guarantees cannot be abridged by 
judgments of courts rendered in lawsuits by private liti­
gants. Shelley v. Kraemer, 334 U.S. 1 (1948); New York 
Times v. Sullivan, 376 U.S. 254 (1964). It is also clear that 
when nonfrivolous constitutional claims are asserted it is 
the duty of the court to make an independent examination 
of the record to resolve the issue. This is particularly the 
case when First Amendment claims are asserted.

Here, the claim is that to the extent that SCLC was in­
volved at all in the Liberty Supermarket demonstrations8 
its actions were fully within the bounds of freedom of 
association, assembly, and speech. Again, as in Part II, it

8 Again, this argument assumes, solely for the sake of argument, 
that there was sufficient evidence to support a finding that SCLC, 
as a corporation, was involved.



30

is important to note what the evidence did and did not show. 
SCLC did not fire the shots that wounded plaintiff; it did 
not cause plaintiff to get out of his car and put himself in 
danger; it did not rock the assailant’s car; and it did not 
drive the car through the line of marchers. Indeed, there 
is no evidence that SCLC or any of its agents or repre­
sentatives was on the scene prior to the shooting, or that 
they took part in, led, organized, or directed the demon­
strators on that evening. The evidence was that the organ­
izing and leadership was carried out by persons acting 
independently of SCLC, and they had instructed the dem­
onstrators to conduct themselves at all times peacefully 
and nonviolently.

All the evidence showed that SCLC did, through its 
agents, was to state that Negroes would stop patronizing 
the store until conditions there were corrected, to ask for 
volunteers to demonstrate on a particular day, and to take 
part in other demonstrations on one or two occasions. There 
was no evidence that any of the demonstrations participated 
in by SCLC people were other than peaceful and orderly. 
There was no evidence that the defendant ever urged any­
thing but peaceful demonstrations and picketing or that it 
participated in, sponsored, or condoned any unlawful acts 
whatsoever.

Thus, this case presents squarely an issue crucial to the 
continued vitality of fundamental constitutional rights: 
Whether an organization can be subjected to crippling judg­
ments on no evidence of any wrongdoing on its part because 
of injuries at best remotely stemming from its efforts to 
bring about racial justice? In this connection, this case 
may be contrasted with that of NAACP v. Overstreet, 221 
Ga. 16, 142 S.E.2d. 816 (1965), cert. dism. as improvidewtly 
granted, 384 U.S. 118 (1966). There, a branch of the 
N.A.A.C.P. organized and carried out a boycott against a



31

store in Savannah., Georgia, on the grounds that the owner 
had assaulted a Negro boy who had worked for him. The 
owner sought, and was awarded, damages for the loss of 
business and goodwill he suffered as a result of the boycott 
and demonstrations. The Supreme Court of Georgia af­
firmed on a number of bases, among them a finding that 
there was in fact no valid racial dispute and that therefore 
no legitimate basis for the boycott existed. Over a strong 
dissent, the Supreme Court dismissed the writ of certiorari, 
which had been limited to the sole question of whether the 
national N.A.A.C.P. could be held liable for acts of one of 
its branches.

In that case, the action was brought by the store owner 
himself to seek compensation for the damages intended by 
the demonstrators, the loss of his business. Moreover, the 
suit was against those who had in fact conducted the dem­
onstrations. Violence was found to have been inflicted by 
the demonstrators themselves on the store owner and his 
customers—those against whom the demonstrations were 
aimed. Both the local N.A.A.C.P. and the national office 
were served with the papers in the suit attempting to halt 
the demonstrations, and the latter did not attempt to dis­
avow the local branch.

In Overstreet, in other -words, damages were sought to 
rectify the intended effects of the demonstrations. The 
demonstrations themselves were found to have no valid 
basis and to have been illegally conducted. Here, SCLC’s 
participation, if indeed there was any, was of an entirely 
different character. At no time was it shown to have urged 
or to be responsible for any illegal or violent acts; on the 
contrary, those in charge of the demonstrations had in­
structed that they be peaceful and nonviolent. In Over- 
street, the damages were precisely those intended and 
brought about, and encouraged, by the demonstrators; here,



32

the injury to plaintiff was fortuitous, unintended and un­
foreseeable by those seeking to rectify the situation at 
Liberty, and wholly unrelated to their aims and intentions.

In his dissent to the dismissal of certiorari in Overstreet 
Mr. Justice Douglas, joined by three other members of the 
Court, warned of the paralyzing effect of an award of 
damages under the circumstances there. Here, the result of 
Overstreet, which barely failed to be overturned, has been 
stretched far beyond even its dubious limits. If the judg­
ment below is affirmed, an organization active in the crucial 
area of civil rights may be subjected to liability on a show­
ing of nothing more than that it was carrying out a program 
of voter registration in an Alabama city; some of its em­
ployees participated in unrelated demonstrations carried 
out by members of the local community; the employees did 
no more than urge people to join them in demonstrations 
on specific dates; on an occasion when no such employees 
or agents were present or in charge some demonstrators 
became involved in an incident unrelated to the purposes 
of the demonstrations; a person, not a demonstrator and 
obviously unsympathetic to their cause, fired into the crowd 
injuring a bystander. To impose liability under these cir­
cumstances would go far in undermining the right of asso­
ciation so vital to a free society.

In summarizing defendant-appellant’s argument, it must 
be emphasized that we do not argue that the plaintiff should 
not have been recompensed for his injuries. Again, how­
ever, his relief lay not against SOLO but against the one 
that fired the shots. To hold otherwise would not only fly 
in the face of the law and the evidence, as it pertains to 
traditional principles of agency and corporate liability for 
tort, but would seriously and adversely affect the activities 
of those who are attempting to achieve racial equality 
through associating and acting within constitutional limits.



33

CONCLUSION

For the foregoing reasons, the judgment below must be 
reversed with instructions either to enter a judgment on 
behalf of the defendant-appellant, or to grant a new trial.

Respectfully submitted,

Chables S teph en  R alston- 
1095 Market Street 
San Francisco, California 94103

J ack  G reenberg
J ames M. R abbit, III
N orman  C. A m akeb  

10 Columbus Circle 
New York, New York 10019

P eter A. H all
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Defendants-Appellants



34

Certificate of Service

I hereby certify that I have served a copy of the attached 
Brief for Defendants-Appellants on counsel for the plain­
tiff-appellee, Mr. Jerry 0. Lorant, 1010-1016 Frank Nelson 
Building, Birmingham, Alabama 3520J  by IJnited States 
mail, postage prepaid, on this the -- day of De­
cember, 1968.

Attorney for Defendants-Appellants



MEiLEN PRESS INC. —  N. Y. C. «€11P»219