Flemming v. South Carolina Electric and Gas Company Appendix to Appellant's Brief

    littteft (tart nf Appeals
For the Fourth Circuit

No. 6995

SARAH MAE FLEMMING, 

vs.
Appellant,

SOUTH CAROLINA ELECTRIC AND GAS 
COMPANY, a corporation,

Appellee.

Appeal F rom the United States District Court 
for the E astern District of South Carolina

APPENDIX TO APPELLANTS BRIEF

P hilip 'Wittenberg,
306-308 Barringer Building, 

Columbia, South Carolina,

R obert L. Carter,
Thurgood Marshall,

107 West 43rd Street,
New York, New York,

Attorneys for Appellant.

Supreme P rin tin g  Co., I nc., 114 W orth Street, N. Y. 13, B E ek m an  3-2320



I N D E X

PAUE

Complaint...................   l a

Motion to Dismiss ..........................    5a

Answer .......................   6a

Opinion and Order ..................................................  8a



la

APPENDIX TO APPELLANT’S BRIEF

luffpiJ States (Eourt of Appals
For the Fourth Circuit 

No. 6995

— ---------- o— -------------

Sabah Mae F leming,

vs.
Plaintiff,

South Carolina E lectric and Gas Company, a corporation,
Defendant.

-------------------------------- o — — .........................

Complaint

The Plaintiff complaining of the Defendant herein, 
alleges:

1. That the Plaintiff is a female citizen of the Negro 
race, residing at 1107 Page Street in the City of Columbia, 
County of Richland, State of South Carolina.

2. That the Defendant is a public utilities corporation 
duly organized and existing under and by virtue of the 
laws of the State of South Carolina; and as a common 
carrier is engaged in the business of transporting passen­
gers for hire by auto bus on a regular schedule within the 
City of Columbia, County and State aforesaid.

3. The action arises under the Constitution of the United 
States, Article 4, Section 2, Clause 1; under the Fourteenth 
Amendment to the Constitution of the United States, See-



2a

tions 1 and 5; under Act of Congress R. S. Section 1977, 
derived from Act of May 31, 1870, Cli. 114, See. 16, 16 Stat. 
144; U. S. C., Title 42, See. 1981; and under the Act of 
Congress R. S. Section 1979, derived from. Act of April 
20, 1871, Ch. 22, Sec. 1, 17 S'tat. 13; U. S. C., Title 42, Sec. 
1983; and the jurisdiction of this Court is based upon the 
Act of Congress June 25, 1948, Ch. 646, Sec. 1, 62 Stat. 
932, elf. Sept. 1, 1948; U. S. C., Title 28, Sec. 1343(3).

4. That on or about the 22nd day of June 1954, at 
about 9 o’clock A. M. the Plaintiff boarded a bus owned 
and operated by Defendant at the corner of Taylor and 
Main Streets in the City of Columbia and paid the required 
fare.

5. That said bus was crowded, and on information and 
belief that every seat was taken, causing people to be 
standing in the aisles, nearly to the driver’s seat; that 
there were mostly persons of the Negro race on the said 
bus; that Plaintiff was standing near the front, when after 
one block, a white person departed leaving a vacant seat 
adjacent to where the Plaintiff was standing; that by the 
custom and usage, then and now prevailing in said City, 
County and State, the front part of a public bus is set 
aside for white people and a rear portion for those of the 
Negro race.

6. That there was then no white persons standing and 
without a seat, and that as this was a single seat, not next 
to a white person, Plaintiff sat down; that upon taking 
said .seat, the bus driver, defendant’s employee and agent, 
acting within the scope of his employment and agency, 
and acting under color of Title 58-1491 through 1496, 
Code of Laws of South Carolina, 1952, which Plaintiff is 
informed and believes is unconstitutional and therefore

Complaint



3a

null and void, and under color of customs and usages in 
said City, County and State, which are without warrant 
or authority in law, but which prevail and pertain to the 
segregation of races on public transportation by motor 
vehicle carriers, because Plaintiff was a Negro, ordered 
Plaintiff from said seat in the front portion of the bus 
in threatening and abusive language and tone.

7. That Plaintiff, in order to avoid a further scene, 
and fearing for her person, and because she was being 
held up to contempt and ridicule because of her race, made 
the appropriate signal for stopping said vehicle after 
traveling only two blocks on same, although her original 
destination was quite distant; that as a few white people 
were getting out the front door of said bus, and as Plain­
tiff was far forward in said bus, in order not to incon­
venience a large number of passengers, attempted also to 
depart by the front exit, whereupon Defendant’s employee 
ordered Plaintiff to get out the rear exit, because she was 
a Negro, and then struck Plaintiff in the abdominal region 
with his hand or fist in order to enforce Ms command.

8. That, Plaintiff is informed and believes that as a 
citizen of the United States, she has and had every right 
and privilege to occupy any seat of her choice upon said 
public conveyance, having paid therefor, without regard 
to race or color; has and had every right and privilege 
to be treated in as courteous and humane manner by said 
defendant public utility as is afforded white citizens, and 
has and had every right and privilege of departing said 
public conveyance from the same exits open to white 
citizens; and that because of the foregoing actions on the 
part of the Defendant acting under color of the law, customs 
and usages, as hereinbefore set out, the Defendant did 
wrongfully deprive the Plaintiff of the rights, privileges

Complaint



4a

and immunities secured her by the Constitution of the 
United States and the laws of Congress implementing same, 
as heretofore set out, and further deprived her of equal 
protection of the law, and denied her due process of law.

9. That as a result of said wilful, wanton, reckless and 
malicious actions on the part of Defendant in acting under 
color of said laws, usage and customs as aforesaid, in so 
wrongfully depriving the Plaintiff of those rights, privileges 
and immunities guaranteed to her and to be protected, as 
aforesaid, Plaintiff has been injured and damaged in the 
sum of $25,000.00 actual and punitive damages.

Wherefore, Plaintiff prays judgment against the De­
fendant for the sum of Twenty-five Thousand and no/100 
($25,000.00) Dollars, actual and punitive damages, for the 
costs of the action, and for such other and further relief 
as the Court may deem proper.

P hillip W ittenberg,
Attorney for Plaintiff,

204 Barringer Building, 
Columbia, 8. C.

Columbia, 8. C., July 20, 1954.

Complaint



5a

To:

M otion to Dism iss

P hilip W ittenberg, Esq., 
Attorney for Plaintiff.

The defendant moves the Court as follows:

1. To dismiss the action in accordance with Rule 41(b), 
Federal Rules of Civil Procedure, on the ground that the 
Court lacks jurisdiction (a) there being no diversity of 
citizenship, and (b) because this action is brought against 
a corporate defendant, while it is alleged on the face of 
the complaint that the acts and things complained of were 
the acts of an individual, defendant’s bus driver, “ acting 
under color’’ of statutes of the State of South Carolina 
over which this defendant has no control and performing 
acts which this defendant has no authority to prevent; 
and such acts were not the acts of this defendant and 
plaintiff has no claim against it under the provisions of 
Title 28, section 1343(3), U, S. Code.

2. To dismiss the action on the ground that the acts 
and things complained of were performed under valid 
statutes of the State of South Carolina, and this defendant 
is not liable for damage arising from the enforcement 
thereof, whether or not the person committing the acts 
complained of was held to be its agent in the enforcement 
of said statutes.

3. To dismiss the action on the ground that the com­
plaint fails to state a claim upon which relief can be granted 
against this defendant, in that plaintiff has alleged no 
“ deprivation” suffered at the hands of this defendant 
for which redress might be granted; alleging, to the con-



Answer

trary, voluntary acquiescense in demands made upon her 
hy a special policeman under the laws of this State.

/ s /  Cooper & Gary,
Attorneys for Defendant,

508 Palmetto Building, 
Columbia, S. C.

/ s /  P aul A. Cooper,
/ s /  P r a n k  B. Gary,

of Counsel.

Columbia, S. C., September 7, 1954.

Answer

The defendant, reserving its right to have heard its 
motions to dismiss and to strike matter from the complaint 
herein, answering the complaint herein, would respectfully 
show:

F or the F irst Defense

1. The complaint fails to state a claim against this de­
fendant upon which relief can be granted.

F or a Second Defense

2. The defendant denies each and every allegation of 
the complaint not. hereinafter specifically admitted.

(a) It admits the allegations of paragraphs 1 and 2 
of the complaint.

(b) It admits on information and belief the allegations 
of paragraph 4 of the complaint.



7a

Answer

(c) It denies the allegations of paragraphs 3, 5, 6, 7, 
8, and 9, of the complaint; and in answer thereto 
alleges on information and belief that the acts and 
things alleged in the complaint, if such occurred, 
were the acts of a special policeman under the Laws 
of the State of South Carolina in the performance 
of his duty, and were not the acts of this defendant.

F or a Third Defense

3. Further answering the complaint herein, the defend­
ant alleges that any act or thing done by defendant’s bus 
driver in performance of his duties as an agent and servant 
of this defendant were reasonable and necessary in all the 
circumstances to preserve order and convenience of pas­
sengers on its bus; and that, any disturbance or alleged 
embarrassment caused plaintiff was the result of her own 
refusal to follow the plain instructions of the driver, or to 
obey the large and clearly-lettered signs posted in the bus 
directing passengers to leave the bus through the center 
door, and the further large sign over the front door indicat­
ing that it is for entrance only.

F or a F ourth Defense

4. If this defendant be deemed an agent of the State 
of South Carolina in the enforcement of its laws with 
regard to segregation of the races on its buses, then it is 
specifically alleged that its enforcement of such laws, by 
its driver, was reasonable and proper, and no more force 
and inconvenience than was necessary in the circumstances 
was employed by its driver in the enforcement thereof.

F or a F ifth Defensf.

5. Any loss, damage, or embarassment, if any, suffered 
by the plaintiff in all the circumstances was caused by her



Opinion and Order

own voluntary disregard of and violation of reasonable 
rules and regulations for the operation of defendants public 
transportation system, and the orderly accommodation of 
passengers therein; and this plaintiff is not entitled to 
recover damages resulting from her own unnecessary and 
unreasonable acts; and has suffered no deprivation of right 
at the hands of this defendant entitling her to recovery.

Wherefore the defendant prays that the complaint be 
dismissed with costs.

/ s /  C ooper & G ary,
Attorneys for Defendant,

508 Palmetto Building, 
Columbia, S. C.

/ s /  Paul A. Cooper,
/s /  P r a n k  B. G ary,

of Counsel.

Columbia, S. C., September 7, 1954.

Opinion and Order

This is an action brought by plaintiff, a negro woman, 
claiming damages for alleged violations of her civil rights. 
She alleges that a bus driver of defendant, acting under 
color of state law (Sections 1491 to 1496, Title 58, South 
Carolina Code of Laws, 1952), required her to sit in a 
seat and to use an exit on one of defendant’s busses on 
which she was a passenger that had. been reserved for the 
exclusive occupancy and use of persons of her race. Plain­
tiff claims that such action on the part of defendant’s 
bus driver violated Sections 1981 and 1983, Title 42, U. S.



9a

Code, and that jurisdiction of her alleged claim is con­
ferred on this court by Section 1343, Title 28, U. S. Code.

The Court has before it for consideration a motion by 
defendant to dismiss the action. While several grounds 
for dismissal have been stated, it is only necessary to 
consider one of them, namely, that the complaint fails to 
state a claim upon which relief can be granted.

It is conceded by plaintiff’s counsel that plaintiff’s only 
claimed injury was the requirement that she sit in a place 
and leave the bus by an exit provided therein for the ex­
clusive use of passengers of her own race. Therefore, 
unless the South Carolina statute requiring separate 
facilities for the races in defendant’s busses is uncon­
stitutional, plaintiff has no claim against defendant. Plain­
tiff ’s contention is that the statutes deny her ‘ ‘ equal pro­
tection of the laws” secured to her by the 14th Amend­
ment. She bases this contention on the Supreme Court’s 
decision in Brown v. Board of Education, 347 U. S. 483, 
74 S. Ct. 686, 98 L. Ed. 873, 38 A. L. R. 2d 1180, decided 
less than a year ago. An analysis of the opinion in that 
case shows that it is not applicable in the field of public 
transportation. There the Court said: “ We conclude that 
in the field of public education the doctrine of ‘separate 
but equal’ has no place” . It has made no such holding in 
the field of public transportation. Besides, the Court 
rested its opinion in the Brown case almost exclusively 
upon sociological and phychological factors. It discussed 
such intangibles as opportunities to engage in discussions 
and to exchange views with students of a different race, 
and the supposed sociological effect which segregation 
might have on a negro child’s motivation to learn. The 
whole basis of the decision is the claimed adverse effect 
which segregation has on the educational and mental 
development of negro children, or as otherwise stated,

Opinion and Order



10a

“ the children of the minority group”. Certainly, no 
such effect can be legitimately claimed in the field of 
bus transportation. One’s education and personality is 
not developed on a city bus. To hold that the Brown 
decision extends to the field of public transportation 
would be an unwarranted enlargement of the doctrine 
announced in that decision and an unreasonable restric­
tion on the police power of the State. This Court is 
still bound by the decision in Plessy v. Ferguson, 163 
U. S. 537, 16 S. Ct. 1138, 41 L. Ed. 256, which holds 
that segregation in the field of public transportation is 
a valid exercise of State police power. Although the 
Brown case discredited some of the language used in 
Plessy v. Ferguson, the Court’s holding in that case has 
not been overruled.

See Lonesome v. Maxwell, 123 F. Supp. 193, holding that 
the Brown decision has no application to public recrea­
tional facilities; and Holmes v. City of Atlanta, 124 F. Supp. 
290, holding that the Brown decision has no application 
to public golf courses.

It is concluded that the complaint fails to state a 
claim upon which relief can be granted and that it should 
be dismissed. It is so

Ordered.

Columbia, South Carolina, February 16, 1955.

G-eorge Bell T immerman, 
United States District Judge.

A true copy, attest,
E rnest L. Allen,

Clerk of U. S. District Court, 
East Dist., So. Carolina.

(seal)

Opinion and Order