Maxwell v. Southern Christian Leadership Conference Brief for Plaintiff-Appellee

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IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 26,612

WILLIAM J. MAXWELL,
Plaintiff-Appellee,

versus

SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE,
ET AL.,

Defendants-Appellants.

Appeal from the United States District Court for the 
Northern District of Alabama

BRIEF FOR PLAINTIFF-APPELLEE

. \

LORANT, BOULOUKOS &
KOPELOUSOS
1010 Frank Nelson Building
Birmingham, Alabama 35203
Attorneys for Plaintiff-Appellee

-

v  -  V ® !

H H H P
copy



TABLE OF CONTENTS

TABLE OF CASES ............................................... .II
STATEMENT OF THE CASE ..................................... 1
STATEMENT OF THE FACTS .................................  1
ARGUMENT

I. The Evidence Shows That Agents or Em­
ployees of Appellant Were Authorized 
and Did in Fact Take Part in Its Behalf
in the Demonstrations in Question here . . . .  8

II. The Evidence Was Sufficient in Law and
Fact to Establish Liability for Plaintiff’s 
Injuries Because of the Acts of S.C.L.C. 
Employees for Negligence or for the 
Establishment of a Nuisance ........................19

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

IV. The Granting of Damages Against
S.C.L.C. Does Not Constitute an Abridge­
ment of Rights of Free Speech and As­
sembly Protected by the First and Four­
teenth Amendments ....................................... 29

CONCLUSION ................................................................34
CERTIFICATE OF SERVICE ..................................35

P age



II.
TABLE OF CASES

X'S'i>s. Alabama Power Co, v. Bass, 218 Ala. 586, 119 So.
625 (1929) ...............................................................21

Aggregate Limestone Co. v. Robinson, 276 Ala.
^  338; 161 So.2d 820 (1964) ................................. 10, 20

^  (  ^^H A llen  v. International Alliance of Theatrical,
A  ̂ State Employment or Moving Pictures Op- 

fi.b X iCa era^ons U. S. and Canada, xAFL-CIQ, 338 
WwA" F.2d 309 (C.A. 5th 1964) ........................................ 10

\ Bakery & Pastry Drivers, etc. v. Wohl, 315 U.S.
769 (1942) .................................................................25

Brotherhood of Railroad Trainmen v. Jennings, 
f "* 323 Ala. 438; 168 So. 173 (1936) ..............................10

Fibreboard Paper Products Co. v. East Bay Un- 
* l: . ion of Machinists, et al., 39 Calif. Rep. 65

(1964) .................................................................23, 3i
V  F. W. Woolworth Co. v. Bradbury, 273 Ala. 392,

, - '» Heath v. Motion Picture Mach. Operators Union
/  Vl ĵj ’ No. 170, 290 S.W.2d 152 (1956) ..............................32

Hitchman Coal & Coke Co. v. Mitchell, 245 U.S.
* 229; 38 S.Ct. 65, 62 L. Ed. 260 (1917) ................22, 23

a v Hubbard v. The Commonwealth, 152 S.E.2d 250
<1967̂ ........................................... 32

Y f l ; /  Hughes v. Superior Court of the State of Calif.,
# * /  X  339 U.S. 460 (1950) ...............................................25

/

P age



TABLE OF CASES (Continued)
III.

P age

f International Brotherhood of Teamsters, etc.,
Union v. Hanke, 339 U.S. 470, 70 S. Ct. 773, 94 
L.Ed. 995 (1950) ...................................................... 33

NAACP v. Overstreet, 221 Ga. 16; 142 S.E.2d 816 
(1965, cert. dism. as improvidently granted,
384 U.S. 118 (1966) Reh. Den. 384 U.S. 981 17, 18, 33

V  National Variety Artists v. Mosconi, 9 N.Y.S.2d
498 (1939) ...............................................................11

y f  - , V People on Complaint of Kirchoff v. Ferrara, 17 
/ ^ k P \  N.Y.S.2d 696 (1940) ............................................... 32
y  People v. Garvey, 79 N.Y.S.2d 456' (1948) ................... 33

V s. H. Kresge & Co. v. Powell, 132 Fla. 417; 180 So.
757 (1938) ........................................................... 12

Sullivan v. Alabama Power Co., 246 Ala. 262, 20
So.2d 224 (1945) ...................................................... 20

Whiteman v. Pitrie, 220 F.2d 914 (C.A. 5th 1955) ... .27
Wortex Mills v. Textile Workers Union of Ameri­

ca, 109 A.2d 815 (1954) .....................................25, 30
U.S. v. Dennis, 183 F.2d 201 (1950) Affirmed Den­

nis v. U.S., 71 S.Ct. 857, 341 U.S. 494 ...................... 33



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 26,612

WILLIAM J. MAXWELL,
Plaintiff-Appellee,

versus

SOUTHERN CHRISTIAN LEADERSHIP 
CONFERENCE, ET AL,

Defendants-Appellants.

Appeal from the United States District Court for the 
Northern District of Alabama

BRIEF FOR PLAINTIFF-APPELLEE

STATEMENT OF THE CASE

The statement of the case as stated in Appellant’s 
brief is correct.

APPELLEE’S STATEMENT OF THE FACTS

The facts as presented by the evidence in the trial 
of this cause are as follows:



2

In February of 1966 certain incidents took place at 
the Liberty Super Market in Birmingham, Alabama 
where a Negro man and his wife were arrested as a 
result of an altercation with a store policeman (SA 
264; SA 271). Apparently there were very strong feel­
ings among the Negro community in Birmingham, Ala­
bama concerning the treatment of the Negro man and 
his wife and also concerning the number of Negro em­
ployees, employed by Liberty Super Market (SA 264; 
SA 271).

On February 18, 1966, a meeting was held at the 
Thurgood A.M.E. Church, Third Avenue and 18th 
Street, Birmingham, Alabama (SA 98). Mr. Hosea Wil­
liams was present and spoke at that meeting along 
with other speakers including Reverend Gardner (SA 
99; SA 113). Mr. Williams was introduced to the audi­
ence as Field Secretary of the Southern Christian 
Leadership Conference (SA 100). Detective W. D. Nel­
son, v/ho attended the meetings and was present at 
this one, made the following statement relating to 
Hosea Williams:

“He (Hosea Williams) said he was going to 
lead a march the next day after the day in 
question, and asked for volunteers to meet him 
at the store.” (SA 105). (Emphasis supplied.)

Hosea Williams stated to the audience at this meet­
ing that he had brought five of his staff members from 
Southern Christian Leadership Conference with him 
(SA 114). Williams stated that Liberty Super Market 
was going to have some black cashiers or no cashiers



3

before they were through with them. He stated that 
they were going to close Liberty’s doors unless they had 
fifty percent Negro cashiers (SA 122). Hosea Williams 
was an employee of the Southern Christian Leadership 
Conference in February, 1966, and had been sent to 
Birmingham, Alabama by the Southern Christian 
Leadership Conference (SA 263).

According to the testimony of Reverend J. E. Low­
ery, who in February, 1966, was a member of the Board 
of Directors of Southern Christian Leadership Con­
ference, the policy-making and decision-making body 
of the Southern Christian Leadership Conference (SA 
261-262), one of the purposes of the Southern Christian 
Leadership Conference was to undertake to gain equal 
opportunities for Negroes (SA 153).

The testimony of Reverend Gardner indicates that 
the afternoon prior to this meeting on February 18, 
1966, twenty-four ministers started picketing Liberty 
Super Market (SA 277) and from aught that appears 
those were the only picketers who were at the Liberty 
Super Market on that day. The testimony also reveals 
that Hosea Williams had just arrived back in Birming­
ham with the five staff members on February 18, 1966 
(SA 114).

Reverend Fred Shuttlesworth was also picketing 
prior to the shooting on February 21, 1966 (SA 243). 
Ben Clark and Stony Cook were at the scene moments 
after the shooting took place, (PI. Ex. 23; SA 243-244), 
both of whom were employees of the Southern Christi­
an Leadership Conference (SA 235). Fred Shuttles-



4

worth was a member of the Board of Southern Chris­
tian Leadership Conference (SA 155). There is nothing 
in the record concerning the statements made by 
Hosea Williams and Fred Shuttlesworth that they were 
not speaking on behalf of the Southern Christian Lead­
ership Conference.

Detective J. C. Wilson, Birmingham Police Depart­
ment, testified that he attended a meeting at St. Paul’s 
Methodist Church, Fourth Court North at Third Street, 
on February 21, 1966, immediately prior to the shoot­
ing incident at Liberty Super Market (SA 126) at 
which time there were approximately 700 persons in 
attendance (SA 217). Reverend Gardner stated that 
the various civil rights organizations would have to 
combine to be more powerful (SA 131). Reverend 
Gardner also stated at the February 21, 1966 meeting 
that they had some out-of-town people with the South­
ern Christian Leadership Conference and Alabama 
Christian Movement who we re there to picket and 
who needed lodging (SA 132).

Officer James R. Hunter, Police Officer for the City 
of Birmingham, stated that he was sitting in a car 
parked in front of the Liberty Super Market on Feb­
ruary 21, 1966 immediately prior to the shooting (SA 
158). He stated there were about 75 picketers march­
ing around the sidewalk at the store (SA 159), that 
there were a number of other people marching through 
the Liberty Super Market lot from Fifth Avenue going 
south toward Fourth Avenue (SA 159). This was the 
scene at Liberty Super Market about 10:00 p.m. that 
night (SA 159). He stated that there were two city de-



5

tectives and one store man seated in the car with him 
on this occasion (SA 160), He stated that there was a 
car parked next to the car he was seated in which 
backed out and started to leave the lot headed east 
going out on 13th Street (SA 160). He stated that the 
marchers were blocking the driveway and as the auto­
mobile came up to the line of marchers, some of them 
stopped to let hiim pass and some kept walking, a space 
opened up and he drove through the line of marchers 
(SA 161). As the automobile got to the driveway on 13th 
Street he could not pull out onto the street because of 
cars circling the block, driving continuously around 
the block (SA 161). As the driver approached the drive­
way a group of marchers and picketers began “ holler­
ing” at the driver of the car (SA 161, SA 169). The peo­
ple who had “hollered” at him had run up to the car, 
somewhere between 100 and 200 marchers and picket­
ers surrounded the car and began to rock it (SA 161). 
At this point the driver of the car fired several shots 
causing the crowd around the car to fall back, then the 
crowd surged back toward the car, at which time the 
driver fired several more shots then turned into the 
street and left the scene. The driver of that car report­
ed to the BirmingL am Police Department and identi­
fied himself as the man who fired the shots (SA 162). 
The persons who surrounded the car were both pick­
eters and marchers (SA 169). The shooting began after 
the marchers arrived at the Liberty Super Market 
(SA 169).

Detective L. A. McIntyre testified that he was pres­
ent at the Liberty Super Market on February 21, 1966, 
the night of the shooting, seated in an automobile fac-



6

ing east in front of the store (SA 175). Detective Mc­
Intyre stated that a man came out of Liberty Super 
Market, got into a car parked next to the car he was 
seated in, and started to leave the super market park­
ing lot by the east on 13th Street driveway. He stated 
that there were a group of Negroes marching through 
the lot from Fifth Avenue to Fourth Avenue and the 
automobile blocked the line. At this point the march­
ers started hollering at him. When the car reached the 
driveway the marchers commenced to rocking Ms car, 
at this point some shots rang out and the people fell 
back (SA 175). Detective McIntyre stated that the oc­
cupants of the car made no threats or movements 
toward the pickelers or marchers (SA 176).

The Plaintiff stated that on the date of the shooting 
he went to Liberty Super Market to do some shopping 
(SA 190). He parked his car next to the driveway after 
the pickets moved to allow him to enter (SA 206). He 
stated that he sat in his car for five or ten minutes. 
While he v/as sitting in his parked car another car 
pulled up to the driveway and the picketers started 
shaking it (SA 200). He stated that some of the picket­
ers or marchers were saying, “Get him,” “ Get him.” 
(SA 200). While sitting in his car he heard shots ring out 
(SA 208). When the Plaintiff felt the shooting was over 
he stepped out of his car and was shot (SA 209.)

Dr. Robert Anderson, a physician, who, at the time 
of the incident was a surgical resident at the Universi­
ty of Alabama Medical College, testified concerning 
the Plaintiff’s injuries (SA 211). Dr. Anderson stated



7

that the Plaintiff was brought to the emergency room 
of the Veterans Administration Hospital from the Uni­
versity Emergency Room on an ambulance stretcher. 
That he had sustained a gunshot wound that the bullet 
traveling through and through his left upper arm and 
into the left chest (SA 213). Surgery was performed on 
Tuesday, February 22, 1966. A tube was inserted into 
the pleural cavity to prevent any air or blood and fluid 
from collecting in this space (SA 214). The abdominal 
cavity was opened and revealed that there was a hole 
that went through both sides of his stomach; a hole 
through the distal end of his pancreas; a hole through 
his large bowel; and a hole in the vein that drains the 
left kidney (SA 215). The bullet lodged in the muscle 
next to the spine and was removed (SA 216-217). The 
holes in the stomach were closed. The end of the pan­
creas was taken out, removed along with the spleen. 
The hole in the vein which drains the left kidney was 
closed. The colon with the hole in it was brought out 
of the abdominal cavity so that it could be observed 
(SA 217). The colon was allowed to remain outside the 
cavity from February 22, 1966 to March 4, 1966 (SA 
218). The Plaintiff-Appellee was confined to the hospi­
tal on his initial admission from February 22, 1966 to 
April 1, 1966 (SA 218). A second operation was required 
in April 1, 1966. This operation was to effect a drainage 
of infection around his colon. During this hospitaliza­
tion he was confined from April 6, 1966 to May 4, 1966 
(SA 219). At the time of the trial, some two years 
later, Dr. Anderson testified that the Plaintiff still had 
some small drainage areas and still goes to the hos­
pital for treatment (SA 220).



8

The Plaintiff testified that he returned to work in 
June, 1966 and was not paid any salary while he was 
off as a result of the injuries from the gunshot wounds 
(SA 198). The Plaintiff earned $75.00 a week prior to 
February 21, 1966 (SA 197).

I .

THE EVIDENCE SHOWS THAT AGENTS OR EM­
PLOYEES OF APPELLANT WERE AUTHORIZED 
AND DID IN FACT TAKE PART IN ITS BEHALF 
IN THE DEMONSTRATIONS IN QUESTION HERE.

The Defendant-Appellant, S.C.L.C., a corporation, 
contends that the evidence does not show that any 
agents or employees of the Appellants were author­
ized to take part in its behalf in the demonstrations in 
question here.

This question must be resolved primarily by the 
facts. The record discloses that the Appellant is a civil 
rights organization which has undertaken to correct 
social grievances of the Negro including the Negro 
worker. The Appellant had established an office in 
Birmingham sometime prior to February 21, 1966, and 
had several of its employees and officers staffing and 
manning that office, namely Hosea Williams, Ben 
Clark and Stony Cook.

On February 18, 1966, a meeting was held at the 
Thurgood A.M.E. Church, Third Avenue and 18th 
Street, Birmingham, Alabama (SA 98). Hosea Wil­
liams, an employee of the Appellant, spoke at this



9

meeting (SA 99). Williams informed the audience that 
he was going to lead a. march the next day and asked 
for volunteers to meet him at the Liberty Super 
Market (SA 105). Among other things, he stated that 
he had brought five of Ms staff members from South­
ern Christian Leadership Conference with him (SA 
114). At this same meeting, he stated that Liberty Su­
per Market was going to have some black cashiers or 
no cashiers at all. He further stated that they were 
going to close Liberty’s doors unless they had fifty 
percent Negro cashiers (SA 122).

The evidence shows that Hosea Williams did, in fact, 
picket the super market (SA 236).

The Reverend Fred Shuttlesworth, a member of the 
Board of Directors of S.C.L.C., also was picketing at 
Liberty Super Market prior to the shooting (SA 243). 
In fact, moments after the shooting Reverend Shuttles­
worth was addressing the crowd over a bull horn (SA 
242, 243; PL Ex. 22) Plaintiff’s Exhibit 22 is a picture 
of the scene moments after the incident which shows 
Reverend Shuttlesworth addressing the crowd and 
also shows Ben Clark and Stony Cook, employees of 
the Appellant.

Reverend Gardner stated at another mass meeting 
immediately prior to the shooting that they had some 
out-of-town people with the S.C.L.C. and Alabama 
Christian Movement who were there to picket and 
who needed lodging (SA 132).



10

A corporation acts by and through its agents and if 
liability is to attach to a corporation, it must be at­
tached by either expressed or apparent authority of 
its servants’ or agents’ authority to act in behalf of the 
corporation. The Alabama law is clear that liability 
for an agent’s negligent act or omission, intentional or 
wanton act in the scope of his employment will be im­
puted. to the principal, regardless of actual participa­
tion of the principal in the acts or omissions. Code of 
Alabama 1958, Title 7, Sec. 217(1); Aggregate Lime­
stone Co. v. Robinson, 161 So. 2d 820; 276 Ala. 338 (1964).

The burden is on the Plaintiff to introduce compe­
tent evidence demonstrating that the employee or 
agent was acting within the scope of his authority. The 
law, however, does not require that every wrongful 
act done by the agent be affirmatively authorized by 
the corporation in order for liability to attach. In­
deed, in most cases, the wrongful acts of the agents 
or the agent’s torts were not specifically authorized by 
the principal. The principal, nevertheless, is liable for 
his agent’s acts within the scope of employment and in 
accomplishment of the objects within the line of du­
ties, and this is true even though an agent seeks to ac­
complish business by improper or unlawful means or 
in a way not authorized by the master, unknown to 
him, or even contrary to his expressed intentions. Al­
len v. International Alliance of Theatrical, Stage Em­
ployment or Moving Pictures Operations of U. S. and 
Canada, AFL-CIO, 338 Fed. 2d 309 (C.A. 5th 1964); 
Brotherhood of Railroad Trainmen v. Jennings, 168 So. 
173, 323 Ala. 438. The Allen case (supra) further stated 
at page 318:



11

“In short, lack of participation or acquies­
cence or ratification are not relevant on the is­
sue of the principal’s liability. The principal 
cannot escape liability for the torts of an agent 
by telling the agent to act lawfully. The criteri­
on is whether the agent is acting within the line 
or scope of the (agent’s) duty.”

An examination of the facts in the case at bar, re­
veals that the Appellant corporation’s aims and goals 
is the advancement of the cause of the Negro and the 
writer submits that this Court would take judicial 
knowledge of this fact. This is admitted by the Appel­
lant (Appellant’s Brief, p. 14). The very purpose of the 
picketing was the alleged mistreatment of two Negro 
customers at Liberty Super Market and the failure by 
Liberty to have sufficient number of Negro employees 
(SA 264). There can be no doubt that the goals and 
aims of the picketing of Liberty Super Market were in 
keeping with the goals and aims of the Appellant and 
in keeping with the duties given to its employees and 
agents to carry out.

The question of whether or not the agents, members 
of the Board of Directors and employees of the Appel­
lant had authority to organize and carry on the picket­
ing is a question of fact. National Variety Artists v. 
Mosconi, 9 N. Y. S. 2d 498 (1959). The jury in the instant 
case did not need to have before it either a writing 
giving the agent the express authority to act in cer­
tain manners, or evidence of a vote by directors or 
stockholders to authorize the agent to act in certain 
matters before it could reasonably conclude the ques-



12

tion of the agent’s authority. The triers of facts need 
only evidence from which they may reasonably infer 
the authority of the agent to act in behalf of the cor­
poration. S. H. Kresge & Co. v. Powell, 180 So. 757, 132 
Fla. 471 (1938). In the instant case the jury decided 
that the agents of the Appellant in fact did have the 
authority to organize and take part in the picketing and 
this conclusion was affirmed by the Trial Court in its 
overruling a Motion for a New Trial, setting out as 
grounds the lack of the agent’s authority.

The Appellant then assumes, arguendo, that even 
if the agents had the authority to act on behalf of 
S.C.L.C., there is no evidence showing that any agent 
of the S.C.L.C. directed or led the demonstrations as 
agent for the S.C.L.C.

It is not denied that in February, 1966:

(1) Reverend J. E. Lowery was a member of the 
Board of Directors of the S.C.L.C., the policymaking 
body of the S.C.L.C. (SA 261-262).

(2) Reverend Gardner was a local minister who 
was Executive Vice-President of the Alabama Christi­
an Movement for Human Rights (SA 277). He also was 
a member of the S.C.L.C. Local Planning Committee in 
August, 1965, when their national convention was held 
in Birmingham.

(3) Reverend Fred Shuttlesworth was a member of 
the Board of Directors of S.C.L.C. (SA 155).



13

(4) Hosea Williams was a full time employee of the 
S.C.L.C. (SA 140).

(5) Ben Clark was an employee of S.C.L.C. (SA 235).

(6) Stony Cook was an employee of S.C.L.C. who 
ran the offices of S.C.L.C. in Birmingham for a while 
(SA 235).

Reverend Gardner testified that he was Executive 
Vice-President of the Alabama Christian Movement 
for Human Rights. He further testified under examina­
tion by the Court that it is affiliated with the S.C.L.C. 
(SA 287). Further that his membership was in Ala­
bama Christian Movement for Human Rights rather 
than directly in S.C.L.C. (SA 287). He further testified 
that his activities writh the S.C.L.C. were through the 
Alabama Christian Movement in August, 1965, during 
the time the national convention was being held in 
Birmingham (SA 286). There was also testimony at 
the trial that Reverend Gardner stated to the audience 
at St. Paul’s Methodist Church on February 21, 1966, 
immediately prior to the shooting, that the various 
civil rights organizations would have to combine to 
be more powerful (SA 131). The record reveals that 
at this same meeting Reverend Gardner appealed to 
the audience for lodging for some out-of-town people 
with S.C.L.C. and Alabama Christian Movement who 
were there to picket (SA 132). The evidence insofar as 
Reverend Gardner’s activities are concerned are in 
conflict. He states that he was acting as an individual 
minister, as a member of Alabama Christian Move­
ment for Human Rights and as a member of the Inter-



14

denominational Ministerial Alliance and not on be­
half of S.C.L.C. His actions do not bear his testimony 
out. This witness was impeached thoroughly on cross- 
examination and there were many inconsistencies in 
his testimony. Reverend Gardner testified on direct 
examination that S.C.L.C. was not involved in the 
picketing at Liberty Super Market. However on cross- 
examination he identified certain portions of a joint 
release published by the office of the Alabama Christi­
an Movement for Human Rights which stated that the 
Alabama Christian Movement for Human Rights and 
the S.C.L.C. met on February 18, 1966, and agreed that 
protest action should begin against Liberty (SA 282,- 
283). The jury has the right to believe any or all of his 
testimony or believe none or only that portion which 
they believe to be the truth. The Appellee submits that 
from the evidence presented the jury could reasonably 
infer that Reverend Gardner was acting as an agent 
of S.C.L.C. and in concert with S.C.L.C. concerning 
these demonstrations and picketing.

The evidence shows the Reverend Fred Shuttles- 
v/orth was the Secretary of S.C.L.C. during the time of 
the picketing and demonstrations; he was also a mem­
ber of the Board of Directors of S.C.L.C. (SA 155). He 
had discussed the picketing at Liberty Super Market 
in various churches prior to the incident (SA 154). 
Shuttlesworth was at the super market picketing on 
the night of the incident and was in fact addressing the 
crowd over a bull horn immediately after the incident 
(SA 243). It appears from the testimony of the police 
officer who observed Shuttlesworth at the meetings



15

that Shuttlesworth was speaking on behalf of the 
S.C.L.C. (SA 135).

Reverend Lowery testified at the trial and stated 
that he was not acting on behalf of S.C.L.C. in. the pick­
eting. We must point out at this point that Reverend 
Lowery was an interested party to this litigation as 
at the time of the trial he was Chairman of the Board 
of Directors of S.C.L.C. (SA 261, and admitted in Ap­
pellant’s Brief, Page 18). This fact would certainly 
go to the credibility of his testimony. An examination 
of his actions show that the meeting held February 
21, 1966, was held in Reverend Lowery’s church. An­
other member of the Board of S.C.L.C. spoke at that 
meeting, Reverend Fred Shuttlesworth, where Rever­
end Shuttlesworth identified himself as an Officer of 
the S.C.L.C. and A.C.M.H.R. (SA 128). Shuttlesworth 
related at this meeting that he had been attending 
meetings in various cities with officers of the S.C.L.C. 
(SA 128,129).

From all of the evidence presented at the trial con­
cerning the three ministers, Reverend Gardner, Rev­
erend Shuttlesworth and Reverend Lowery, a jury 
could reasonably infer that they were acting as the 
agents of S.C.L.C. In their capacities as officers of 
S.C.L.C., their admitted actions on behalf of S.C.L.C. 
in other similar endeavors, this was evidence from 
which the jury could resolve the question of agency.

Hosea Williams was a full time employee of S.C.L.C. 
who was present in Birmingham during February, 
1966. He had brought five staff members with him on



16

February 18, 1966. They all attended a meeting held at 
one of the churches on February 18, 1966, at which time 
he stated that he was going to lead picketing at the 
Liberty Super Market on the next morning and asked 
for volunteers to assist him (SA 105, SA 114). He further 
stated at this meeting that they were going to close 
the doors at Liberty Super Market unless they had 
fifty percent Negro cashiers (SA 122). (Emphasis sup­
plied). Appellee calls to the attention of this Court that 
he did not state that he, Hosea Williams, individually, 
was going to lead the picketing, but that they were 
going to lead the picketing. Appellee submits the logi­
cal inference from this statement was that he and his 
five staff members from S.C.L.C. were going to lead 
the demonstrations.

The Defendant’s witnesses state that Hosea Williams 
was sent to Birmingham to work on voter registrations 
and the Defendant attempts to show that this was his 
only purpose in being in Birmingham. S.C.L.C. argues 
that this was his only purpose in Birmingham and that 
his efforts, speeches and actions concerning the picket­
ing at Liberty Super Market were done as an indi­
vidual. However, the facts show that he was sent to 
Birmingham by S.C.L.C.; he spoke at a meeting called 
for the purpose of organizing picketing at Liberty Su­
per Market and called for volunteers to assist him in 
the picketing. There is nothing in the record indicating 
that the picketing at Liberty Super Market had any­
thing to do with voter registration, but to the contrary, 
had to do primarily with alleged racial discrimination 
of Liberty. It would be very difficult to conclude that 
S.C.L.C. did not authorize and direct Hosea Williams



17

to spearhead the drive against Liberty Super Market. 
After all, gaining equal opportunities for Negroes was 
the avowed aim of S.C.L.C. Hosea Williams was the 
“man in the field” for S.C.L.C., and in fact, was em­
ployed on a full time basis to carry on their activities 
in the field, including picketing.

There was further testimony by Mr. Jim Cunning­
ham, a local television reporter, that he had inter­
viewed Hosea Williams who told him that S.C.L.C. was 
doing the picketing (SA 250).

In N.A.A.C.P. v. Overstreet, 221 Ga. 16, 142 S.E. 2d 816 
(1965) (cert. dism. as improvidently granted 384 U. S. 
110 (1966)) a group was picketing the Plaintiffs store 
as a result of an alleged beating given a 14 year old 
Negro by the Plaintiff. Picketing was organized and 
carried on by the Defendant and spilled over into vio­
lence. The Court stated at page 825:

“ The evidence was sufficient for the jury to 
conclude that as a result of the mass meeting 
of the N.A.A.C.P. the picketing began, that the 
picketing was led by pickets placed on the 
picket line by Lav/, that they were joined by 
large numbers of sympathizers or other mem­
bers of the conspiracy, and that the presence of 
the pickets brought about mass picketing, 
threats, violence, the use of vile, vulgar and 
indecent language toward Plaintiff, his wife, 
employees and customers. The picketing was 
not peaceful thus unlawful;”



18

In the Overstreet case the facts were very similar 
to the instant case. An officer of the N.A.A.C.P. spoke 
at a meeting at which he stated he was going to lead 
the picketing of the Plaintiff’s store. The Court stated 
that this was sufficient evidence from which a jury 
could reach a conclusion that the officer of the Defend­
ant, N.A.A.C.P. was acting as the agent of the N.A.A.C.P.

In the instant case, we have Mr. Hosea Williams, 
Reverend Fred Shuttlesworth, Reverend Gardner, all 
officers or employees of the Defendant, S.C.L.C., speak­
ing at mass meetings, asking for volunteers to meet 
them at Liberty Super Market to picket for the pur­
pose of forcing the hiring of fifty percent black cash­
iers. The aims and goals of the Defendant, S.C.L.C., 
is to undertake to forward the status and posture of 
the Negro, including the Negro worker (SA 153).

In the Overstreet case (supra) the Court stated at 
page 826:

“If Law originally acted without authority 
and assumed to act for them without author­
ity, they had the option to repudiate or ratify 
the act, but they were required to do one or the 
other, and where, as here, they never repudi­
ated the act, they are deemed to have affirmed 
it.” (Case cited).

In the instant case, the Plaintiff-Appellee contends 
that there was sufficient evidence from the testimony 
presented to support the finding that the Defendant- 
Appellant through its agents organized and carried



19

on the picketing and marching. There is no testimony 
in the record, nor was there any evidence presented at 
the trial of this case that Defendant-Appellant, S.C.L.C., 
repudiated any of the actions of its agent or employ­
ees. In fact, the record is replete with testimony that 
the agents of the Defendant-Appellant, Hosea Wil­
liams, Ben Clark, Stony Cook, Reverend Fred Shuttles- 
worth, continued to march and picket after the incident 
(SA 243, 244; PL Ex. 22).

II

THE EVIDENCE WAS SUFFICIENT IN LAW 
AND FACT TO ESTABLISH LIABILITY FOR 
PLAINTIFF’S INJURIES BECAUSE OF THE 
ACTS OF S.C.L.C. EMPLOYEES FOR NEGLI­
GENCE OR FOR THE ESTABLISHMENT OF 

A NUISANCE

The Defendant’s contention in Argument No. 2 is 
that the evidence was not sufficient to establish lia­
bility for the Plaintiff’s injuries either for negligence 
or nuisance.

Defendants herein contend that to effect a recovery 
the Plaintiff must show that the Defendant could have 
reasonably foreseen that the injuries that this Plain­
tiff received would have resulted and occurred out of 
the acts of the Defendant. (Appellant’s brief, page 22, 
second paragraph). This is not the law, nor is it a cor­
rect statement of the issue in Defendant’s contention.



20

The real issue in the case, for the purpose of the dis­
cussion of Defendant’s contention herein, is one of 
proximate cause. The real issue: Was the injury a 
natural and probable consequence of the wrong?

A “proximate cause” is the cause that produces a 
result in continuous sequence and without which it 
would not have occurred. The particular result need 
not have been foreseen so long as the wrongdoer 
might have foreseen that some injury might result; 
“proximate cause”  is really defined as the dominant 
or immediate cause or the cause that sets the others 
in motion. 86 C.J.S. Torts, Sec. 27, p. 941. The proximate 
cause is not necessarily the act nearest the injury, but 
is the act which actively aids in producing injury as a 
direct and existing cause. Aggregate Limestone Co. v. 
Robinson, 161 So. 2d 820, 276 Ala. 338.

Appellant in its brief, cites the case of Sullivan v. 
Alabama Power Co., 20 So.2d 224, and states therein 
that Plaintiff must show an unbroken chain of causa­
tion from the act to the injury. Upon careful examina­
tion, the Sullivan case holds that if the evidence is not 
entirely free of doubt or adverse inference bearing 
upon the question of Defendant’s negligence, as to 
proximate cause of the injury complained of, then the 
issue must be submitted to the jury for decision.

Further, in Sullivan (supra) the Court stated that it 
is not necessary that the Defendant should anticipate 
the injury in the precise form as resulted. Nor need 
the particular consequences have been within the con-



21

temptation of the parties. Quoting from Sullivan on 
page 228:

“As regards proximate cause, the courts look 
more for the probability of a hazard of some 
form to some person than for the expectation 
of the particular chance that happened. Ac­
cordingly it is not necessary to a Defendant’s 
liability after his negligence has been estab­
lished to show, in addition thereto, that the par­
ticular consequences of his negligence could 
have been foreseen by him; it is sufficient that 
the injuries are the natural, although not the 
necessary and inevitable, result of the negli­
gent fault — such injuries as are likely, in ordi­
nary circumstances to ensue from the act or 
omission in question.”

See also the case of Alabama Power Co. v. Bass, 218 
Ala. 586, 119 So. 625, 63 A.L.R. 1, 25 C.J.S. Damages, Sec. 
25, p. 487.

There are a great number of cases, throughout the 
land, where mass picketing in myriads of instances 
has erupted into violence, and the conclusion becomes 
inevitable that mass picketing and violence go hand 
in hand; and violence can always be expected as a 
foreseeable consequence of mass picketing. Witness 
the fact that so many cases have been decided by the 
Courts wherein injunctive relief is sought to halt mass 
picketing for the purpose of avoiding violence.

S.C.L.C. has insisted in argument that the only per-



22

son liable to Maxwell for his injuries is the individual 
who fired the shot that injured Maxwell. The issue is 
whether or not there was a causal connection between 
S.C.L.C. and the injury. It is Appellee’s contention, 
which is amply supported by the facts in the record, 
that there was an unbroken chain of events, a causal 
connection, brought about by S.C.L.C., that proximately 
caused the Plaintiff’s injuries.

It has long been the law that organizations engaged 
in dem-onstrating or picketing, or activities in further­
ance of their goals are responsible for the lawlessness 
or violence which arises from the picketing or demon­
strating.

The case of United Traction Co. v. Droogan, 198 
N.Y.S. 29, wherein the Court is confronted with similar 
issues states as follows:

“ The Courts hold that organizations engaged 
in strikes are responsible for all lawlessness 
growing out of strikes which they could have 
avoided by reasonable discipline imposed 
upon their members, by publicly counseling 
that peaceful means alone be used, by protest­
ing against and disavowing lawlessness, by 
taking such reasonable measures as may be at 
hand to assist in preventing or punishing it, 
and by doing all of these things unequivocally 
and in good faith.”

In the Droogan decision, the Court cites the Supreme 
Court of the United States in Hitchman Coal & Coke



23

Co. v. Mitchell, 245 U.S. 229, 38 S.Ct. 65, 62 L.Ed. 260, as 
follows:

“When any number of persons associate 
themselves together in the prosecution of a 
common plan or enterprise, lawful or unlaw­
ful, from the very act of association there 
arises a kind of partnership, each member 
being constituted the agent of all, so that the 
act or declaration of one in furtherance of the 
common object is the act of all. . . . .”

In the case of Fibreboard Paper Products Co. v. 
East Bay Union of Machinists, et al, 39 Calif. Rep. 65, 
it is held that when picketing gives birth to violence, 
and that violence proximately causes injury to a 
Plantiff and the jury so finds, the reviewing Court will 
not retry the facts but will merely ascertain whether 
the law in reaching those facts was applicable. In 
Fibreboard the Court held that both common law and 
statutory law will uphold a jury verdict in assessment 
of damages against a corporate Defendant whose 
agents were picketing, and as a direct result of such 
picketing, tortious conduct resulted in injury. The Su­
preme Court of California in Fibreboard further stat­
ed:

(1) That the test of liability of labor unions 
and members was not whether their conduct in 
relation to picketing was reasonable in esti­
mation of the jury, but whether it amounted to 
an unlawful tortious conduct.



24

(2) Whether or not it amounted to an unlaw­
ful tortious conduct was a jury question.

(3) The jury by the evidence presented to 
them concluded that the acts committed by 
their picketers constituted tortious conduct.

(4) The reviewing or Appellate Courts have 
been extremely reluctant to reverse or invade 
the province of the jury when questions of fact 
are in issue and when there is a reasonable 
inference indulged in to uphold the verdict if 
possible.

The issues of proximate cause must be considered in 
the light of the surrounding circumstances of each par­
ticular case. It is undisputed and admitted for the pur­
poses of this argument that S.C.L.C. was involved in 
the picketing and demonstrating at Liberty Super 
Market.

Picketing, while being a form of communication, is 
something more and different from a mere expres­
sion of thought or ideas. It involves the physical pres­
ence of persons in a group, at some locality express­
ing their views of dissatisfaction with some action or a 
person, group of persons or business enterprise which 
is in the same locality. The mere physical presence of 
two antagonistic groups in such close geographical 
proximity to one another may induce action of one kind 
or another completely different in nature from the 
ideas attempted to be disseminated by the picketers. 
The burden is on the picketing group to prevent this



25

from happening. When the picketing causes violence it 
becomes unlawful and there can be but little question 
but that a person Injured as a result of this violence 
must have redress against the group which caused 
the pickets to be present, which erupted into violence 
and caused the injury. Hughes v. Superior Court of the 
State of Calif., 339 U. S. 460-469; Bakery & Pastry Driv­
ers, etc. v. Wohl, 315 U.S. 769 (1942), Wortex Mills v. 
Textile Workers Union of America, 109 A. 2d 815 (1954).

The law in cases such as these is concerned with a 
causal connection between the Defendant and the in­
jury. The law is well established, not only in this juris­
diction but others as well, that where evidence bear­
ing upon the question of Defendant’s negligence as the 
proximate cause of the injury complained of is not en­
tirely free from doubt or adverse inference, then the 
issue must be submitted to the jury. Sullivan case 
(supra). (Emphasis supplied).

This similar issue was resolved in the Overstreet 
case. The Supreme Court of Georgia found the N.A.A. 
C.P. liable for damages as a result of N.A.A.C.P. picket- 
ers and marchers on Plaintiff’s property which caused 
him injuries and damages. The issue is well settled. 
S.C.L.C. would have this Honorable Court believe that 
although there were several S.C.L.C. staff members 
wearing S.C.L.C. buttons, making speeches, organizing 
picketers, marching, picketing, and carrying placards, 
that all these acts were done independently and not in 
behalf of S.C.L.C. The same argument was made to 
the jury who reviewed all the evidence and all the 
facts and that jury, by their verdict, ascertained that



26

the S.C.L.C. members were, in fact, acting in behalf 
of, and by authority of S.C.L.C., the corporate Defend­
ant in this cause.

Appellant contends that there was no evidence that 
Hosea Williams or any other S.C.L.C. workers were at 
Liberty Super Market on February 21, 1966 or took 
part in, led or directed the picketing then.

A brief examination of the record clearly reveals 
that there was evidence before the jury, from eye 
witnesses which saw Hosea Williams, an officer of the 
S.C.L.C., at Liberty Super Market with the pickets 
picketing in the parking lot prior to the shooting (SA 
236). Plaintiff also introduced certain photographs, 
identified by one of the witnesses, depicting the scene 
and the circumstances moments after the actual shoot­
ing showing that the Reverend Fred Shuttlesworth, an­
other officer of S.C.L.C., was in the picketing crowd 
(SA 242-243). A pamphlet was also introduced in evi­
dence which was picked up at the S.C.L.C. office in 
Birmingham, Alabama by a news reporter, signed by 
Hosea Williams relating to S.C.L.C.’s picketing at Lib­
erty Super Market (SA 246-247; PI. Ex. 26). All three 
of the Birmingham Detectives, W. D. Nelson, Billy J. 
Cooper, and J. S. Wilson, testified that they had attend­
ed certain meeting whereby staff members and rep­
resentatives of S.C.L.C. were organizing picketers to 
picket and demonstrate specifically aimed at Liberty 
Super Market, to force Liberty Super Market to meet 
S.C.L.C.’s demands in reference to Negro employment.

The jury determined that the acts of the S.C.L.C. em-



27

ployees were such as to make S.C.L.C. liable both in 
negligence and in nuisance to the Plaintiff. Their find­
ing was reaffirmed, by the Trial Judge who overruled 
a Motion for New Trial setting forth the same conten­
tion as grounds.

Ill

THE EVIDENCE WAS SUFFICIENT TO 
SUPPORT THE AMOUNT OF DAMAGES AWARDED

The Defendant-Appellant argues that the evidence 
was insufficient to support the amount of damages 
awarded and cites Whiteman v. Pitrie, 220 F.2d 914 
(5th Cir. 1955) as authority. In the Whiteman case 
$30,000 was awarded for two fractures of the right arm. 
Pitrie, the injured Plaintiff in Whiteman, did not suf­
fer any loss of wages, nor was there any evidence that 
he was hospitalized for any lengthy period of time or 
suffered disabling, agonizing internal injuries.

A review of the injuries sustained by Maxwell in the 
instant case reflects that the award is more than ade­
quately supported by the evidence. Dr. Robert Ander­
son testified that the bullet entered Maxwell’s arm, 
passed through the arm and entered the chest, went 
through bis chest cavity, through his stomach, through 
his pancreas, through his large bowel, through the vein 
which drains the kidney, and lodged in the muscle next 
to the spine (SA 216-217).

Maxwell was admitted to the hospital and under­
went surgery shortly after the admission (SA 214). The



28

holes in his stomach were closed; the end of the pan­
creas was removed; the spleen was removed; the 
hole in the vein which drains the left kidney was closed; 
the colon was brought out of the abdominal cavity and 
placed in position outside the body so that it could be 
observed from February 22, 1966 to March 4, 1966 (SA 
217-218); he remained in the hospital initially from 
February 21, 1966 to April 1, 1966, a total of some 38 
days.

Five days after his discharge from the hospital Max­
well was re-admitted because of infection to the in­
jured portion of the colon (SA 219). Another operation 
was performed to surgically drain the infection (SA 
219). During this period he was confined to the hospital 
from April 6, 1966 to May 4, 1966, a period of 28 addi­
tional days (SA 219; PI. Ex. 13).

Dr. Anderson further testified that Maxwell was still 
coming back to the hospital for treatment at the time 
of the trial, some two years after the injury had been 
inflicted (SA 220), and stated that Maxwell’s internal 
drainage may continue and not heal (SA 224).

Maxwell testified that he had difficulty sleeping at 
nights (SA 197).

The assessment of damages is left largely to the 
discretion of the jury in the first instance and to the 
discretion of the Trial Judge on Motion for New Trial. 
F. W. Woolworth Co. v. Bradbury, 273 Ala. 392; 140 So.2d 
824 (1962). In the instant case the jury awarded the 
damages and the Trial Judge overruled a Motion for



29

New Trial setting out as one of its grounds the exces­
siveness of the damages awarded. The Court stated 
that the Plaintiff suffered very grievous injuries (SA 
85). A remittitur was directed for the value of the hos­
pital care in the amount of $3057,00 and Plaintiff filed 
proper remittitur in said amount. The verdict is not 
excessive.

IV
THE GRANTING OF DAMAGES AGAINST S.C.L.C. 
DOES NOT CONSTITUTE AN ABRIDGEMENT OF 
RIGHTS OF FREE SPEECH AND ASSEMBLY PRO­
TECTED BY THE FIRST AND FOURTEENTH 

AMENDMENTS
The Defendant-Appellant’s contention herein is that 

the activities of S.C.L.C. were of such limited minimal 
nature insofar as its involvement with the Liberty 
Super Market demonstrations that those limited mini­
mal activities and actions were fully in the bounds of 
association, assembly and speech which are protected 
by the First and Fourteenth Amendments.

Defendant-Appellant’s position in their brief is that 
there was no evidence of any wrongdoing on the part 
of S.C.L.C. in the efforts of S.C.L.C. to bring about racial 
justice. This position is spelled out as an issue in the 
last paragraph on page 30 of Appellant’s brief where 
Appellant stated that the crucial issue is:

“Whether an organization can be subjected 
to crippling judgments on no evidence of any 
wrong-doing on its part. . .”
(Emphasis supplied).



30

In this regard, there is evidence for a jury to con­
clude that S.C.L.C. organized and created picketing 
and demonstrations consisting of between 100 to 200 
persons on the occasion complained of. There is suf­
ficient evidence for the jury to conclude that S.C.L.C. 
undertook or organized pickets and picketing and did, 
in fact, create picket lines and a picketing of the Liber­
ty Super Market.

Hosea Williams, the Field Director of S.C.L.C., at­
tended a meeting called for the purpose of picketing 
the Liberty Super Market. He spoke and said he was 
going to lead a march and picketing at Liberty Super 
Market and asked for volunteers to join him, (SA 105). 
Large numbers of people began picketing and were 
joined with many sympathizers. The picketing sur­
rounded the premises and was on the sidewalks and 
blocked the driveway, making it difficult for ingress 
and egress by members of the public at Liberty Super 
Market. There was created an atmosphere of violence 
and violence did in fact erupt and William Maxwell 
was injured. Moments after the shooting, Fred Shut- 
tlesworth was seen addressing the picketers and 
marchers at the scene with a bullhorn! (SA 242, 243, 
Plaintiff’s Exhibit 22). Also, two other full time em­
ployees of S.C.L.C., Ben Clark and Stony Cook, were 
identified as being on the scene and being in the crowd. 
(Plaintiff’s exhibit 22)

Picketing can only invoke the protection of the First 
and Fourteenth Amendments when it is being carried 
out in a lawful manner and for lawful purposes. Wor- 
tex Mills, Inc. v. Textile Workers Union of America, et



31

al., 109 A.2d 815 (1954). The Supreme Court of Pennsyl­
vania in Wortex Mills (Supra) held that “mass picket­
ing is illegal and that the state courts have power to re­
strain such picketing.” (Court’s emphasis). The Court, 
in Wortex Mills, stated that 150 pickets, congregating 
around the entrance door to Plaintiff’s building, using 
threats and intimidations, constituted mass picketing 
which by law is illegal and unprotected by the U. S. 
Constitution. Having established this, the Court further 
allowed an award of damages for $66,254.34 against the 
Defendants.

It is the law that picketing Defendants are not im­
mune from the common law tort action for damages 
and that the State Courts have the power to issue in­
junctions against the unlawful picketing in civil cases. 
The awarding of damages against picketing Defend­
ants does not fall within the protection or framework 
of the First and Fourteenth Amendments of the U.S. 
Constitution. It is conceded and granted that picketing 
to redress certain grievances is authorized and gua­
ranteed under the U. S. Constitution. However, liability 
or regulation of such picketing or liability for damages 
as a result of injuries proximately resulting from the 
picketing is not protected. Liability exists for dam­
ages and injuries proximately resulting from the pick­
eting where the conduct of the picket lines results in 
tortious conduct. Fibreboard Paper Products Corp. v. 
East Bay Union Machinists, et al, 39 Calif. Rep. 64; 
Wortex Mills, Inc. v. Textile Workers of America 
(supra); NAACP v. Overstreet (supra).



32

When picketing gives birth to violence and that vio­
lence proximately causes injury to a Plaintiff and the 
jury so finds, the Reviewing Court will not retry the 
facts, but will merely ascertain whether the law, in 
reaching those facts, wras applicable. In the Fibreboard 
case (supra), the Court held that both common law and 
statutory law will uphold the jury verdict in assess­
ment of damages against a corporate Defendant whose 
agents were picketing and as a proximate conse­
quence of such picketing, tortious conduct resulted in 
injury. Picketing and demonstrating is one of the 
major means employed by organizations, including 
S.C.L.C., in furthering their aims and goals, but even 
in those cases where the Courts have repeatedly held 
that mere picketing connotes no evil and does not con­
stitute disorderly conduct, it may not be accompanied 
by violence, trespass, threats of intimidation, ex­
pressed or implied, and crowds must not be collected, 
free entrance to property must not be impeded, and no 
statements oral or written which are false in fact must 
be made. While picketing is usually employed in labor 
disputes it is frequently employed in other situations. 
When so employed in latter situations, it is subject to 
lawful regulation and restraint. People on Complaint 
of Kirchoff v. Ferrara, 17 N.Y.S. 2d 698. Hubbard v. 
Commonwealth of Virginia, 152 S.E. 2d 250 (Va. 1967).

Quoting from Heath v. Motion Picture Mach Oper. 
Union No. 170, 290 S.W. 2d 152 (1956) at p. 157:

“A picket line by its very nature exerts influ­
ence, and it produces consequences different 
from other modes of communication. The



33

loyalty and responsibility associated by picket 
lines are unlike those that flow by appeals 
from printed words. Hughes v. Superior Court 
of Calif., 339 U. S. 460, 465; 70 S. Ct. 718, 721;
94 L. Ed. 985.”

Picketing has been held to be a form of communica­
tion but it cannot be equated with the constitutional 
protection of freedom of speech; International Brother­
hood of Teamsters, etc. v. Hanke, 339 U.S. 470, 474; 
70 S. Ct. 773; 94 L. Ed. 995; and the constitutional free­
dom of speech was not intended to shelter acts of force 
and violence, coercion or intimidation. Consequently, 
freedom of speech and press does not include the 
right to use any force, whether direct or indirect. Peo­
ple v. Garvey, 79 N.Y.S. 2d 456; U. S. v. Dennis, 183 Fed. 
2d 201 (affirmed in Dennis v. U. S., 71 S. Ct. 857), 341 
U. S. 494.

Reference has previously been made to the case of 
N.A.A.C.P. v. Overstreet, 221 Ga. 16, 142 S.E. 2d (1965), 
cert, dismissed as improvidently granted, 384 U. S. 409 
(1966); Overstreet and the instant case are strikingly 
similar. In Overstreet, picketing was commenced to 
redress grievances. A picket line was formed and large 
numbers of people picketed; there was mass picketing 
surrounding the premises and sidewalks, an atmos­
phere of violence was created and among other in­
stances of violence there was a pistol shot fired. (See 
p. 825, headnote 16 in Overstreet case (supra).) The 
Court in Overstreet held that the evidence was suf­
ficient for the jury to conclude that as a result of a 
mass meeting, the picketing began that the pickets



34

were joined by many sympathizers, that the presence 
of the pickets brought about mass picketing and vio­
lence. The picketing was not peaceful and thus unlaw­
ful. (See p. 825, Overstreet case (supra).) The award 
for damages was upheld.

The Trial Court in the instant case concluded that 
the evidence, as to the activities of S.C.L.C., was suf­
ficient to be submitted to the jury, and the jury con­
cluded from the evidence that S.C.L.C. was responsible 
for the acts complained of.

This is a factual dispute and the record is replete 
with evidence substantiating the injured person’s con­
tention herein. This contention is further strengthened, 
by the actions of the Trial Court in overruling the 
S.C.L.C.’s Motion for a New Trial.

CONCLUSION

In conclusion, therefore, it is apparent that S.C.L.C’s 
attempt to absolve itself of any liability by invoking 
the protection of the First and Fourteenth Amend­
ments of the U. S. Constitution is without merit.

The Trial Court was of the opinion that a jury issue 
was presented upon the merits, including the issue of 
agency and proximate cause.

The jury found from the evidence and was satisfied 
that S.C.L.C. was guilty of negligence, and of creating 
a nuisance, and as a proximate consequence caused 
Maxwell’s injuries. It is respectfully but strenuously



35

urged the Judgment of the Trial Court should be af­
firmed.

nectfuily submitted,
■eAsu*.

DOPANT, b o u l o u k o s  &
TCOPELOUSOS 
ATTORNEYS FOR 
PLAINTIFF-APPELLEE

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the 
attached Brief for the Plaintiff-Appellee, William J. 
Maxwell, on counsel for the Defendant-Appellants, Mr. 
Charles Stephen Ralston, 1905 Market Street, San Fran­
cisco, California 94103, Mr. Jack Greenberg, 10 Colum­
bus Circle, New York, New York 10019; James M. Na~ 
brit, III, 10 Columbus Circle, New York, New York 
10019; Norman C. Amaker, 10 Columbus Circle, New 
York 10019; Peter A. Hall, 1630 Fourth Avenue North, 
Birmingham, Alabama 35203, by United States mail, 
postage prepaid, on this the day of January 1960.

jrry U. Lcnant 
Attorney for Plaintiff-Appellee 
William J. Maxwell



Scofields’ Quality Printers, Inc, ■— New Orleans, La.



Jerry O. Lorant 

George J. Bouloukos 

John Kopelousos

L. AW O F F I C E S  OF

L o r a n t  a n d  B o u l o u k o s

Birmingham . Alabam a  3 5 203

SUITE 1010-10! s 

Frank n e l s o n  B u i l d i n g  

Telephone 322-755 !

January 21, 1969

Mr. Charles Stephen Ralston
1095 Market S treet
San F rancisco, C a lifo rn ia  94103

.Messrs. Jack Greenberg,
Norman C. Araaker and 
J mas N abrit, ZIZ 
10 coluwfeus C irc le  
New York, New York 10019

and

Mr. Peter A. Hall 
Masonic Temple Building 
1630 Fourth Avenue North 
Birmingham, Alabama 35203

Gentlemen t

Re* W illiam J , M a x e ll v .
Southern Christian 
Leadership conference 
» o .  26,612, United States 
Court o f  Appeals fo r  the

...............................

in c lo sed  please fin d  cop ies  o f  the b r ie f  
fo r  P la in t iff-A p p e lle e  in the above-styled  cause 
f i l e d  with the 5th c i r c u i t  Court o f  Appeals on or 
p r io r  to  January 22, 1969.

very truly yours,

Kaeloouse