Newman v. Piggie Park Enterprises Appellees' Brief

    APPELLEES’ BRIEF

United States Court of Appeals
F or the Fourth Circuit

No. 10,860

A nne P. Newman, Sharon W. Neal 
and John Mungin, A ppellants,

versus

Piggie P ark E nterprises, Inc., a Corporation, and 
L. Maurice Bessinger, A ppellees

On A ppeal from the United States District Court 
for the Eastern District of South Carolina

SAMUEL B. RAY, JR., 
Barnwell, S. C.,

Attorney for Appellees.

The R. L. Bryan Company, Legal Printers, Columbia, S. C.



INDEX
P age

Statement .............................................................................. 1

Questions Presented............................................................  6

Argument:
I. That the District Court did not err in excluding 

Appellees’ five drive-in establishments from cov­
erage as a place of public accomodation within the 
meaning Title II of the Civil Rights Act of 1964.. 7

II. Negro Appellants are not entitled to a reasonable 
attorney’s f e e ...............................................................  10

Conclusion .............................................................................  10

( i )



Table Of Cases
P age

Katzenbach v. McClung, 85 S. Ct. 377 .............................  9

Statutes Involved

Title II of the Civil Rights Act of 1964, 42 U. S. C.
Section 2000a................................................ 1? 5, 6, 7

Section 2000a (b) (2) ...............................................1
Section 2000a—3 (b) ..................................................  10

( i i i )



APPELLEES’ BRIEF

United States Court of Appeals
F or the F ourth Circuit

No. 10,860

A nne P. Newman, Sharon W. Neal 
and J ohn Mungin, A ppellants,

versus

P iggie Park E nterprises, Inc., a Corporation, and 
L. Maurice Bessinger, Appellees

O n  A ppeal from the United States D istrict Court 
for the Eastern District of South Carolina

STATEMENT
This class action by appellants sought an injunction 

against the appellees pursuant to Title II of the Civil Rights 
Act of 1964, 42 U. S. C. Section 2000 (a) et seq. The relief 
sought pertained to six business establishments operated 
by appellees; however, relief was denied appellants insofar 
as five of the establishments were concerned. The District 
Court concluded the character and operation of only one 
of the establishments came within the definition and com­
pulsion of sub-section (b) (2) of the Act.



2 Newman et al., A ppellants v.

The Complaint filed in this action songht injunctive 
relief against the appellees upon the grounds that appellee’s 
businesses were such as came within the definitions and 
prohibitions encompassed in the Civil Rights Act of 1964 
and that the appellants had been denied access to all the 
facilities of appellee’s business establishments solely on the 
basis of race, (la  through 20a, Appellant’s Appendix.)

The appellees defended the action on several grounds, 
all of which were ruled against by the District Court, except 
the defense that said business establishments were not 
places of public accommodations as defined in the Civil 
Rights Act of 1964. *

The District court concluded that all of appellee’s estab­
lishments “ affected commerce” within the meaning of the 
Act and that appellees denied equal service to negroes.

The undisputed facts upon which the District Court 
based its decision denying relief as to the five drive-in 
establishments pertain to the character and operation of 
the establishments, as said character and operation deter­
mine whether or not the establishments are of those defined 
by the Act. That the Court was fully advised as to the 
distinctive character of appellee’s drive-in establishments 
is revealed by the testimony presented by Mr. Bessinger 
as follows:

“ Q. And in so far as the drive-ins are concerned, 
Mr. Bessinger, 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 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 en­
courage eating on the premises and making it com­
fortable for on the premises eating. And then after



P iggie Park Enterprises et al., A ppellees 3

going into the service and coming out, as I said, I in- 
visioned a new type of food service industry, and I so 
set out to promote this type of business which calls for 
exclusive driving operation more or less, and the pur­
pose 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 operation.

Q. How is your drive-in operation designed to ac­
complish that? A. First of all you start with a basic 
building, which is for all practical purposes, it hardly 
has any partitions, 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 sta­
tions outside for your customers 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 
service, 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 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 build­
ing. The girl hands the order to the customer, she col­
lects 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 getting along? A. No she does not return 
to the automobile. 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.



4 New man  et al., A ppellants v.

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 customer on the lot longer. We 
cater to the family type people that would come in and 
get this good food to go. We don’t cater to teenagers. 
We ran this experiment on selling beer, hut 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 people 
to move on as soon as they been served? A. No, sir.

The Court: The waitresses don’t suggest that 
either do they? A. Oh no, sir. We don’t do that, hut 
we try to malm it convenient for them to leave the 
minute they get their order.

The Court: A s soon as you get the money you’re 
ready for them to go? A. Yes, sir. We are as a matter 
of fact.” (175a, 176a, 177a, 178a, Appellants’ Appen­
dix.)

And further, the court personally was familiar with the 
operation and character of the drive-in establishments as 
will appear from the dialogue between the court and Jemell 
Richardson, one of the witnesses at trial, (170a, 171a, Ap­
pellants’ Appendix).

The appellees’ operated six establishments that sell 
prepared foods; however, the operation of five of them 
vary greatly from the one known as “ Little Joe’s Sandwich 
Shop.” The latter being a cafeteria with all of the usual 
accommodations for dining on the premises, i.e., seats, 
tables, etc., designed to facilitate comfort and consumption 
of the food on the premises. (184a, 185a, Appellants’ Ap­
pendix.)

Drive-in establishments operated by appellees are dif­
ferent in character and are distinct from the usual type of



P iggie Park Enterprises et al., A ppellees 5

drive-in. The service offered is merely one of delivering 
food to a patron’s automobile prepared and served in a 
manner designed to facilitate and encourage consumption 
away from the place of preparing the food. (179a, Appel­
lants’ Appendix.) Appellees’ drive-ins merely deliver pre­
pared food in packages or containers to patrons in auto­
mobiles ready-to-go. No tray is left, the food is paid for 
when it is delivered to the car. (177a, Appellants’ Appen­
dix). And as a matter of fact, at least 50% of the food sold 
is consumed away from the premises, (193a, Appellants’ 
Appendix), and the district court so found. It is noted here 
also that large quantities of food sold by appellees is in 
bulk. (194a, Appellants’ Appendix.)

The district court dismissed all defenses raised by the 
then defendants except . . . “whether any or all of defend­
ants’ eating establishments are places of public accommoda­
tion within the meaning and purview of section 201 of Title 
II of the Civil Rights Act of 1964 (Section 2000a).”  (210a, 
Appellants’ Appendix.)

In order to decide this question, the court posed itself 
three questions in substantially the inclusive language of 
the Act, as follows: “ (1) Is corporate defendants establish­
ments, or any of them, ‘principally engaged in selling food 
for consumption on the premises’ ; (2) Does said defendant 
at its establishments serve or offer ‘to serve interstate 
travelers’ ; and (3) has ‘a substantial portion of the food 
which it serves, . . .  or other products which it sells 
. . . moved in commerce’ ?” (21a, Appellants’ Appendix.)

The court found and concluded adversely to appellees 
as to questions (2) and (3), and the court found and con­
cluded adversely to appellee as to question (1) insofar as 
the “Little Joe Sandwich Shop” was concerned. However, 
the Act itself limited the application thereof to places of 
public accommodation, as defined in this section.”  (Em­



6 Newman et al., A ppellants v.

phasis added.) (42 U. S. C. Section 2000a). In accordance 
therewith, the district court found and concluded that the 
five drive-in establishments were not facilities defined by 
the Act, nor were they principally engaged in serving food 
for on the premises consumption. (228a, Appellants’ Ap­
pendix.)

The court, apparently in accordance with the equities 
of its decision, denied appellants’ an attorneys fee, although 
allowed appellants other costs of the proceeding.

QUESTIONS PRESENTED
1. Whether five drive-in establishments, operated by 

appellee in which (1) food is not principally sold for con­
sumption on the premises, (2) no accommodations are of­
fered for eating on the premises, other than a parking 
space from which to order food delivered to an automobile 
in carry-out disposable packages or containers, (3) at least 
fifty per cent of the food sold is carried away from the 
premises for consumption, come within the facilities enum­
erated as places of public accommodation under Title II 
of the Civil Rights Act of 1964.

2. Whether Negroes seeking injunctive relief against 
six business establishments pursuant to Title II of the Civil 
Rights Act of 1964, and being denied relief as to five of 
the six establishments, are entitled to a reasonable attor­
neys fee.



Piggie Park Enterprises et al., A ppellees 7

ARGUMENT

I
That the District Court did not err in excluding appel­

lees’ five drive-in establishments from coverage as a place 
of public accommodation within the meaning Title II of 
the Civil Rights Act of 1984.

With reference to the eating facilities covered by the 
Act, Congress provided:

“Any restaurant, cafeteria, lunchroom, lunch- 
counter, soda fountain or other facilities principally 
engaged in selling food for consumption on the prem­
ises . . (42 U. S. C. Section 2000a (b) (2) ).
In refusing to enjoin the Appellees five drive-in facil­

ities from the coverage of Title II of the Civil Rights Act 
of 1964, the district court noted at the outset “ none of the 
reported cases dealing with eating houses has considered 
this aspect of the Act” . (226a, Appellants’ Appendix.) The 
aspect being that the Act itself defines public accommoda­
tions encompassed therein as will appear from the follow­
ing language:

“ All persons shall be entitled to the full and equal 
enjoinment of the goods, service, facilities, privileges, 
advantages, and accommodations of any place of public 
accommodation, as defined in this section, . . . ”  (em­
phasis added) (42 U. S. C. Section 2000a).

The court then considered the specificity of the types of 
facilities enumerated for coverage by the Act. The court 
noted that the term restaurant has no definite legal meaning 
unless defined by statute. (227a, Appellants’ Appendix.), 
and the court then reasoned that Congress was well aware 
that the terms used would be considered in the generally 
accepted sense.

In this connection it is contended that the Appellees’ 
business establishments are neither a restaurant, cafeteria,



8 Newman et al., Appellants v.

lunchroom, lunchcounter, nor a soda fountain in the gener­
ally accepted sense. As a matter of fact, Appellees’ busi­
nesses are unique among drive-in facilities. None of the 
usual accommodations furnished by eating establishments, 
i. e., trays attached to the automobile for convenience in 
on the premises consumption, music, beer, waitresses re­
turning to inquire whether the customer is getting along 
all right, silverware, china in any measure whatsoever, 
are furnished by Appellees’ establishments. (Emphasis 
supplied.)

Consideration was given by the district court to the 
word “ or” with reference to the words “ other facility” , the 
question raised being whether or not Congress intended 
disjunctive or conjunctive use thereof. Our view of the use 
of the word is that it would make no difference in the ap­
plication so far as the conclusions of the district court are 
concerned. Should it be considered in the disjunctive, then 
the entire phrase “ or other facilities principally engaged 
in selling food for consumption on the premises” would 
then modify or qualify the terms “ restaurant, cafeteria, 
lunchroom, lunchcounter, soda fountain” , the only inference 
that could reasonably be drawn being that disjunctive use 
reflects the intention to cover restaurants, etc., as used in 
common parlance and understanding. In fact, such use 
of this pharse actually defines the intended use of the word 
restaurant, etc.

Similarly, if conjunctive use of the phrase or other 
facility is adopted, then the same result would follow, that 
is, in order for a facility to be covered, it must be princi­
pally engaged in selling food for consumption on the prem­
ises. The district court reached the same conclusion by a 
somewhat different route in its opinion. (See footnote 9, 
226a, 227a, Appellants’ Appendix.) We urge that under any 
rationale, the plain and simple language used in the Act



P iggie Park Enterprises et al., A ppellees 9

restricts coverage to those facilities specifically enumer­
ated, and it would seem then that the character and opera­
tion of the appellees’ businesses are not included in the 
coverage of the Act. That the legislators intended coverage 
of virtually all restaurants, is quite a different thing from 
saying that they intended coverage of all restaurants. It is 
suggested that it would have been a simple matter to have 
acquired coverage of all such businesses that “ affect com­
merce” , if such had been the intention but, Congress re­
stricted coverage to those businesses that are “ principally 
engaged in selling food for consumption on the premises.”

The basis and intention of Congressional action also 
appears in the language of the Supreme Court in the case 
of Katzenbach versros McChmg (85 Supreme Court S. Ct. 
377), where the court said “ . . . that discrimination in res­
taurants had a direct and highly restrictive effect upon in­
terstate travel by negroes. This resulted, it was said, be­
cause discrimination practiced prevented negroes from buy­
ing prepared food served on the premises while on a trip, 
except in isolated and unkempt restaurants and under most 
unsatisfactory and often unpleasant conditions.” The court 
also noted in the McChmg case that the restaurant had re­
fused to serve negroes “ in its dining accommodations (page 
380).

It is contended by the appellants that it was intended 
by Congress to cover virtually all restaurants and to sup­
port tills contention Senator Magnuson is quoted (page 15, 
Appellants’ Brief), and a Reverend Mack is quoted from 
the testimony given before the Senate Commerce Committee 
(page 18, Appellants’ Brief), as well as other congressional 
records on tills point. Perhaps some of the congressional 
leaders intended coverage of every facility of whatever 
kind. Nevertheless, there were other members of Congress 
in opposition to such coverage and the language ultimately



10 Newman et al., A ppellants v.

appearing in the Act as passed would logically seem a com­
promise on this point and the language ultimately used 
would then reflect the true intention of Congress. Would 
it not have been a simple matter to have said “ and similar 
establishments” , which language would have unequivocably 
brought every facility in the United States selling prepared 
food in any quantity within coverage by the Act.

II
Negro appellants are not entitled to a reasonable at­

torney’s fee.
This question would seem to be answered best by ref­

erence to the Act itself: “ In any action commenced pur­
suant to this sub-chapter, the court, in its discretion, may 
allow the prevailing party, other than the United States, a 
reasonable attorney’s fee as part of the costs . . .”  (42 
U. S. C. Section 2000a-3 (b)). It is to be noted from the 
foregoing section that the prevailing party” may be allowed 
a reasonable attorney’s fee. (Emphasis supplied.) It is fur­
ther noted, however, that such allowance is in the discre­
tion of the court. We urge that in this action the appellants 
are no more the prevailing party than are the appellees.

Even if appellants had been the prevailing party, then 
from the language of the statute, it would appear that the 
matter rested with the discretion of the district court. It 
is submitted that there are no significant factors in this 
case which would suggest an abuse of the discretion of 
the court.

CONCLUSION
WHEREFORE, for the foregoing reasons, appellees 

pray that the appeal be denied.
Respectfully submitted,

SAMUEL B. RAY, JR., 
Attorney for Appellees.