Lassiter v. Swift Company , 204 Ga. 561 ( 1948 )

Where, as here, the judgment excepted to is one finding the employees guilty of contempt of court for violation of an injunction order issued on the petition of the employer, the rights of the employer and employees growing out of their relationship and the validity of the injunction order are not under review, but the sole question for this court to decide is whether or not the court's order is shown to have been violated by the employees. The evidence authorized the court to find that each of the plaintiffs in error, with the exception of O. A. Duncan, who were not parties to the main suit, acted in violation of the court's order with full knowledge of the existence and content of that order. The evidence authorized as to Duncan no more than a conjecture or inference, and was insufficient in law to prove that he had violated the court's order.

No. 16352. NOVEMBER 18, 1948. STATEMENT OF FACTS BY DUCKWORTH, CHIEF JUSTICE. Swift Company brought suit in the Superior Court of Colquitt County against J. T. Lassiter, W. W. Littles, Earl McGlamory, Harvey Mathis, James T. Norman, John T. Beverly, Jasper McFarland, and Local Union No. 269 of the United Packing House Workers of America (C. I. O.), whose officers are H. S. Carter, President, J. T. Lassiter, Vice-President, H. L. Strange, Secretary, and Lloyd Allegood, Recording Secretary, as alleged in the petition. The petition alleged that the defendants were employees of the petitioner, were on strike, and had interfered with the operation of the company by certain alleged acts, such as blocking the entrance to the company's plant with automobiles and intimidating employees engaged in delivering the products of the company; and it was prayed that the defendants be enjoined. On April 12, 1948, an order was entered, restraining the defendants from preventing or attempting to prevent the petitioner by threats, violence, intimidation, or other unlawful means from engaging in or continuing its proper and lawful business activity and the peaceful use and enjoyment of its property used in the conduct of its business, from disposing of its goods and products, and from preventing or attempting to prevent by threats, violence, intimidation, or other unlawful means any person or persons from engaging in or remaining in the employment of the petitioner or performing the business, labor, or duties in connection with their employment with the petitioner.

Thereafter, on April 24, 1948, pursuant to a stipulation and agreement of counsel for all the parties to the said cause, waiving an interlocutory hearing and consenting that the restraining order be continued, the court entered an interlocutory judgment continuing the restraining order of April 12, 1948, just as if an interlocutory hearing had been held in the matter.

On April 29, 1948, the petitioner made an application to the court for an attachment for contempt against J. T. Lassiter, W. W. Littles, Earl McGlamory, John T. Beverly, Jasper McFarland, H. S. Carter, H. L. Strange, Lloyd Allegood, Cecil Dickens, Billy Miller, C. F. Hart, and O. A. Duncan, alleging in the application that the parties named were guilty of violating the interlocutory injunction, and alleging various incidents which it was contended constituted such violation. Cecil Dickens, Billy Miller, C. F. Hart, and O. A. Duncan, named in the application for citation for contempt, were not named in the petition for injunction or in the interlocutory injunction order.

On April 30, 1948, the court amended the interlocutory injunction order by adding thereto "Lawful and peaceable picketing is permitted."

On May 4, 1948, the petitioner brought a second application for contempt against J. T. Lassiter, W. W. Littles, Jasper McFarland, Earl McGlamory, Jack Martin, J. C. Courtoy, and I. C. Clayton because of alleged violation of the interlocutory injunction. Jack Martin and J. C. Courtoy were not parties to the injunction suit or to the interlocutory injunction. Cecil Dickens, Billy Miller, and O. A. Duncan filed a motion to dismiss the application for contempt upon the ground that they were not parties to the case and were not bound by the effort of the petitioner to make the Local Union a party, and could not be ruled for contempt on the basis of the case to which they were not parties.

The respondents in the first application for contempt, which was filed April 29, 1948, filed special demurrers, ground 2 and 6 of which were sustained and all the other grounds overruled. They also filed an answer denying the allegations of the petition and making affirmative defenses.

The respondents, Jack Martin, J. C. Courtoy, and I. C. Clayton, in the application for citation for contempt, filed on May 4, 1948, a written motion to dismiss and dissolve the application upon the ground that they were not parties to the main case and were not bound by the petitioner's attempt to make the Local Union a party. They also filed an answer making a general denial and setting forth affirmative defenses.

After hearing evidence submitted by both sides, the court overruled the motion to dismiss and certain grounds of the special demurrer, finding the respondents, J. T. Lassiter, W. W. Littles, Jasper McFarland, Earl McGlamory, Cecil Dickens, Billy Miller, O. A. Duncan, Jack Martin, J. C. Courtoy, I. C. Clayton, and C. F. Hart, to be guilty of having failed and refused to comply with the orders of the court entered on April 12, 1948, and April 24, 1948, and to be in contempt of court. The respondents, J. T. Lassiter, W. W. Littles, Jasper McFarland, and Earl McGlamory, were sentenced to serve a period of 20 days in the common jail of the county, and the other respondents were sentenced to serve a period of 10 days in jail. The respondents excepted, assigning error on the final judgment and on the rulings overruling the motions to dismiss and the judgment overruling grounds 1, 3, 4, 5, and 7 of the respondents' special demurrers; but in this court have expressly waived the exception to this ruling except as it relates to the overruling ground 7 to paragraph 5 of the application for attachment filed on April 29, 1948, and especially to that part of the paragraph which alleges that "about 2 o'clock on the morning of April 18th the home of the said I. C. Carter, an employee of Swift Company, was blasted by dynamite, his daughter and other members of his family narrowly escaping injury"; the grounds of the demurrer being that the said allegation was irrelevant, impertinent, immaterial, and prejudicial, in that the allegation and the petition wholly failed to show that the respondents or any of them were in any manner responsible or had any connection with the alleged dynamiting or to connect the said alleged dynamiting in any manner with the respondents or with any acts or activities alleged to have been performed by them after the judge had reserved his ruling on the demurrer until after the conclusion of the evidence. Objections were made to the testimony of a witness for the petitioner, testifying to the truth of the allegation demurred to upon the same grounds, and the action of the court in overruling the objections to that testimony is excepted to.

The evidence introduced is voluminous and we do not deem it necessary to set it out in full here. It shows that on one occasion an employee telephoned the superintendent of the petitioner early in the morning, that the sheriff and his deputies went out there, and the superintendent found the employee standing in the road, picked him up and carried him to the plant, the sheriff following them. The defendant Duncan was seen talking to this employee and the employee quit work and has not been back. The defendants put a sign on a telephone pole located upon the petitioner's property; and when the superintendent of the petitioner removed the sign, the defendant Lassiter invited him to come across the street and they would settle it once and for all. Billy Miller placed an automobile in the private driveway of the petitioner, thereby interfering with the ingress and egress to the petitioner's plant. On another occasion an employee, Allen, found when he was ready to leave the shop that his truck would not start, and after going uptown and returning with a mechanic he and the mechanic were ordered by a number of respondents, whom he identified at the trial, not to enter upon the petitioner's premises, and they were required to return and obtain the protection of the sheriff to enable them to enter the company's premises for the purpose of repairing the employee's car. Another employee testified that when he was walking into the plant with another employee, four or five of the pickets, including J. T. Lassiter and I. C. Clayton, told them that they could not go into the company's place of business. Another employee testified that the respondent, I. C. Clayton, while the employee was going into the company's plant, said "There goes two God damn s-o-b's," and when they looked around said, "If you don't like it," employing another profane and vulgar expression, "come out in the road;" and because of this language the employee testified he quit his job. It was further shown: that the respondent, Jack Martin, while talking to employees of an independent contractor who were performing work for the company, said "G-D You s-o-b., get this car back in the street and go back to Florida"; that he asked them, "Where in the hell you think you're going? Don't you know there is a strike on? Back this thing out of here, back it out. You s-o-b., back it out and get it down the road. Get back down in Florida where you belong." There was testimony that the respondents, J. T. Lassiter, C. F. Hart, I. C. Clayton, and Jasper McFarland, were near the car. The evidence showed that these employees of the independent contractor refused thereafter to work for the petitioner. A witness testified that Earl McGlamory told him, "We'll fix him," referring to I. C. Carter, an employee of the company who had gone back to work. I. C. Carter testified that, on Saturday afternoon while putting money in a parking meter, he heard C. F. Hart, who was standing at the next meter, say, "There's a damn scab. He won't get by with it. We'll see about that." Evidence was admitted that on the following Sunday morning, about 2 o'clock, an explosion, which Carter testified was dynamite, did considerable damage to Carter's residence. Another employee of the company testified that when he started to work, pickets stepped out in front of his car and warned him to stop; that he did not know who they were; that one of them had but one arm, cursed him, and told him he was not going to work, and that a number of them struck the employee, and some of them pulled his left leg out of the door of his car and said, "Let's break it," and then twisted his leg, and the one-armed man kicked him. This employee went and got the sheriff and returned and entered the company's premises under the protection of the sheriff. This employee identified the respondents, McFarland and Littles, as the two men who stepped in front of his car and the respondents, Courtoy, Clayton, and Lassiter, as those who precipitated the incident. Jack Martin testified that he was the one-armed man, and that he explained to the employee the purpose of the strike and tried to persuade him not to go through the picket line, and told him that, if he did, he would carry the name of scab with him, and that the employee reached down in the car and picked up a heavy shoe and struck at him with it. The respondent, J. T. Lassiter, testified: "We got instructions from headquarters when the strike began to honor the law. . . When the restraining order came out we got orders to honor it and we certainly have ever since." The paragraph in the application for attachment which alleged that the respondents who were not parties to the original suit had actual knowledge of the existence of the injunction order was denied by such respondents, but as further plea and answer they alleged that they had not violated the injunction order, and that they had implicitly obeyed that order by limiting their activities in furtherance of their strike to quiet, orderly, and courteous picketing. In the expansive field of the respective constitutional rights of employers and employees many conflicting claims have been frequently asserted upon which court decisions have been rendered. We find in the excellent brief of counsel for the plaintiffs in error the following citations with quotations therefrom: Thornhill v. Alabama, 310 U.S. 88 (60 Sup. Ct. 736,84 L. ed. 1093): "In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution." Thomas v. Collins,323 U.S. 516 (65 Sup. Ct. 315, 89 L. ed. 430), which held that any attempt to restrict assembly must be justified by clear public interest, "threatened by clear and present danger." Marsh v. State of Alabama, 326 U.S. 501 (66 Sup. Ct. 276, 90 L. ed. 265): "when we balance the constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position." But the assignments of error in this bill of exceptions do not present for decision any question of law pertaining to the relationship of employer and employee as such. We are not called upon or authorized by this record to review the interlocutory injunction as to its legality. That judgment was entered pursuant to the consent of all parties, and not having been excepted to, has become final and is as a matter of law legal and binding.

The sole question which we are called upon to decide is whether or not the plaintiffs in error are shown by the evidence to have violated the terms of that order. It is not contended by the plaintiffs in error, nor indeed could it be successfully claimed, that anyone with knowledge of that order can violate its terms with impunity. The trial court is vested with authority to enforce the provisions of that order and may summon the full power of the State government for that purpose. We have set forth material portions of the evidence in the statement of facts preceding this opinion, and shall not repeat the same here. The evidence was sufficient to authorize the trial judge to find that each of the plaintiffs in error, with the exception of O. A. Duncan, had violated the terms of the injunction. As to Duncan the evidence authorized no more than a conjecture or inference. The petition was not evidence, and the allegations, where there was no attempt upon the hearing to sustain them by proof, can not be considered as evidence. The evidence shows generally that all of the strikers belonged to the Local Union and served as pickets under orders from the Union. It shows that some of the pickets used profane language to the employees and called them vile names, including the word "scab," and that this intimidated and was intended to intimidate the employees and prevent them from working. Counsel for the plaintiffs in error meet this evidence with the argument that the nomenclature of the strike is not the language of the parlor, and that strikers may talk in their own language, citing Walter A. Wood Mowing Reaping Machine Co. v. Toohey, 114 Misc. 185 (186 N.Y. Supp. 95); and it is contended that equity in such cases will be concerned only with acts and not with words, whether written or spoken, citing F. C. Church Shoe Co. v. Turner, 218 Mo. App. 516 (279 S.E. 232), and Nannv. Raimist, 255 N.Y. 307 (174 N.E. 690, 73 A.L.R. 669). If it is sought by this argument to establish the constitutional right of laborers to free speech where no court order is violated, it might have merit, but where, as here, an order of court is violated, the violator can find no protection under the constitutional guaranty of free speech. The freedom of speech guaranty, as well as protection of life, liberty and property, of these respondents is dependent upon the majesty of the law, the integrity of the courts, and the inviolability of judgments of the courts. The order here expressly forbids using threats, violence, or intimidation for the purpose of preventing others from engaging in the employment of the petitioner. Intimidation may be just as effectually accomplished by words as by acts. It must be held that the circumstances, acts, and words shown by the record authorized the trial judge to find that each of the plaintiffs in error except O. A. Duncan had violated the injunction.

But a further question raised respecting those plaintiffs in error who were not parties to the main suit, and were not named in the court order, is whether or not they had knowledge of such order. It is settled law that, to sustain a judgment holding them in contempt, the evidence must show that they acted after having actual knowledge of the court's order. Carson v. Ennis,146 Ga. 726 (92 S.E. 221, L.R.A. 1917E, 650); Tomlin v. RomeStove Range Co., 183 Ga. 183 (187 S.E. 879); Walker v.Grand International Engineers, 186 Ga. 811 (199 S.E. 146);Corley v. Crompton Highland Mills, 201 Ga. 333 (39 S.E.2d 861). While there is no direct proof that these plaintiffs in error had such knowledge, there is, however, circumstantial evidence, together with their own pleadings, sufficient to authorize the trial judge to find that they acted with such knowledge. It is shown that they were striking employees, members of the Union, serving on the picket line. The plaintiff in error Lassiter, an officer of the Union, testified in part as follows: "We got instructions from headquarters when the strike began to honor the law. . . When the restraining order came out we got orders to honor it." The court was authorized to find from this testimony that all the members of the Union were notified as to the existence and content of the injunction order, and if so, these plaintiffs in error were thus shown to have had knowledge thereof. In addition to this evidence, these plaintiffs in error denied each paragraph of the application for contempt, including one wherein they were alleged to have had knowledge of the court's order; but then proceeded to plead affirmatively that they had not violated the court's order, and that they had implicitly obeyed that order. None of them denied having such knowledge upon the trial. In these circumstances, the court was authorized to find that all of them acted with full knowledge of the provisions of the injunction order.

There is no merit in any of the complaints against the pleadings or evidence regarding the dynamiting of the home of the employee Carter.

Judgment reversed as to O. A. Duncan, because the court erredin finding that he had violated the court's order. Judgmentaffirmed as to the other plaintiffs in error. All the Justicesconcur.