Newman v. Piggie Park Enterprises Appellees' Brief
Public Court Documents
January 1, 1966

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Brief Collection, LDF Court Filings. Newman v. Piggie Park Enterprises Appellees' Brief, 1966. 70fa5789-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8acfdc97-41f4-40be-8779-d0e6a9a0c498/newman-v-piggie-park-enterprises-appellees-brief. Accessed April 29, 2025.
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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.