Friday, November 17, 2017

What Kinds of Civil Cases Black Southerners Litigated Against Whites in Southern Courts, 1900-1950

Yesterday, my blog post discussed the kinds of civil cases black southerners most frequently litigated against whites in eight southern state supreme courts between 1865 and 1899. Today, I'm drawing on the research in my new book Litigating Across the Color Line to discuss the most common kinds of appellate civil cases litigated by African Americans against whites between 1900 and 1950, and how black southerners' cases shifted during this period.

Courtesy: Library of Congress
Black southerners had litigated a range of appellate civil cases against whites between 1865 and 1899, and often asserted their rights in such cases boldly. But as disfranchisement and segregation increasingly set in at the end of the 19th century, the kinds of civil cases black litigants were most able to litigate against whites in their state's highest courts shifted. During the first two decades of the 20th century, in particular, the types of appellate civil cases between black and white southerners narrowed significantly. Now, almost three-fourths of the appellate civil cases examined involved personal injury or fraud in property dealings. To a limited degree, this reflected larger legal trends, including the nationwide growth in tort cases. However, I argue that fraud and personal injury cases occurred especially frequently in appellate civil cases between black and white litigants during this period because the legal claims necessary to support these cases also sometimes supported whites' ideas about racial inequality. According to the law, it was difficult to bring a case of fraud if both parties in the transaction stood on an equal footing. Similarly, in personal injury cases, litigants needed to demonstrate that they had suffered injuries that caused them pain and loss of income. As a result, black litigants in such cases had strong motivations to present themselves as particularly vulnerable, and/or uneducated, which they almost uniformly did in cases that reached southern state supreme courts. Such presentations supported both their legal claims and white jury members' and judges' ideas about race, allowing black southerners to litigate cases against whites even at the height of Jim Crow.

In one 1907 Alabama fraud case, the white defendant J.W. Abercrombie had defrauded the elderly black plaintiff, 81-year-old Andrew Carpenter, by telling him that he was signing a mortgage when he was actually deeding away his property. In response, Carpenter brought a civil suit against Abercrombie. In his testimony, just as in the testimony of almost every other black litigant in an appellate fraud suit during this period, Carpenter emphasized his lack of business knowledge, stating “I do not know anything about the significance of deeds and mortgages, or legal papers.” But even as they emphasized their lack of education in such suits, African Americans' defiance and assertions of their rights still sometimes clearly came through. Carpenter also testified that when he confronted the white man about the fraud, Abercrombie had offered to pay him a small fraction of the costs of the property. Carpenter then testified, “I told him I would not take $100 but before I took that I would die first.” He continued, “I came on then to see if I could get any rights in court.”*  Despite such assertions of individual rights, however, most such cases during the first two decades of the 20th century made no larger claims for African American rights as a whole.

Then, between 1921 and 1950, the kinds of cases that black southerners could litigate in southern appellate courts broadened once again. In addition, more and more seemingly everyday kinds of suits litigated by individuals over personal injury, property, contracts, and wills began to include challenges to the racial status quo. Unlike the personal injury cases of the first decades of the 20th century, for instance, Ethel New's mid-1940's personal injury case challenged racial discrimination as well as claiming damages for the plaintiff's injury. New’s husband was stationed in Virginia as WWII came to an end and when the incident occurred, she had been returning from a visit to him, three months pregnant. She stood up for the first 81-mile leg of her bus journey as there were no seats in the section on the back of the bus reserved for African Americans. Finally, in Lynchburg, Virginia, she obtained a seat in the second to last row. A few minutes later, though, a bus driver ordered her to move to the last row of the bus to accommodate the white passengers who had just boarded. Seeing that the back bench was hard and did not recline, New refused to move. In response, the bus driver and an officer dragged her off the bus by her shoulders and legs. After reaching her destination of Kentucky, New’s back and leg ached and she suffered a miscarriage. She hired a lawyer to file a personal injury suit. The suit protested not only her own treatment and the loss of her unborn child, but also the segregation laws that required her to sit in the back of the bus. Indeed, the suit stated that New’s injuries had been a direct result of her race. While New's case was ultimately unsuccessful in both the trial and appellate courts, she had asserted not only her own individual rights, but the rights of African Americans to equal treatment on public transportation.**

These largely individual-led civil cases challenging discrimination during the 1920s, 1930s, and 1940s existed alongside the NAACP's legal efforts to challenge discrimination. Ethel New's law firm, for instance, also played a part in representing Irene Morgan in the 1946 NAACP-led suit Morgan v. Virginia over interstate bus travel. In general, though, the civil suits during this time that challenged discrimination in southern appellate courts seem to have been brought by individuals who had economic stakes in the suits, as well as concerns over equal rights. In these ways, these suits had many similarities to the many civil appellate suits between black and white southerners that had occurred in the decades before.
* Abercrombie v. Carpenter, 150 Ala. 294 (1907).
** New v. Atlantic Greyhound Corporation, 186 Va. 726 (1947)