Hart Cotton Mills, Inc. v. Abrams , 231 N.C. 431 ( 1950 )

57 S.E.2d 803 (1950) 231 N.C. 431

HART COTTON MILLS, Inc.
v.
ABRAMS et al.

No. 104.

Supreme Court of North Carolina.

March 1, 1950.

Pierce & Blakeney, Charlotte, and Henry C. Bourne, Tarboro, for plaintiff appellee.

Robert S. Cahoon, Greensboro and Atlanta, Ga., for respondent appellants.

BARNHILL, Justice.

While the evidence consumes less than forty pages of the record, there are 243 assignments of error. However, many of them are not brought forward and discussed in the brief of appellants. Those that are preserved present four questions for consideration and decision: (1) Are the facts found by the court sufficient to support the judgment, and if so, (2) is there competent evidence sufficient to support the findings; (3) did the court admit incompetent evidence to the prejudice of the respondents; and (4) have the respondents purged themselves of any contempt on their part?

A mere reading of the findings of fact answers the first question. It was not necessary that the order be formally served on each of the respondents. Actual notice of its existence and contents was sufficient. Mocksville Lodge No. 134, A.F. & A.M. v. Gibbs, 159 N.C. 66, 74 S.E. 743; Wilson v. Bryan, 195 N.C. 360, 142 S.E. 491; High, Injunctions, 4th ed., sec. 1422.

The mandate of the court was operative as against all parties having notice thereof from the time it was issued. To fix the liability of respondents for a violation of its terms, it was only necessary to show that they were actually apprised of its existence at the time they committed the acts alleged. Mocksville Lodge v. Gibbs, supra; High, Injunctions, sec. 1421.

There is substantial evidence in the record in support of each finding of fact made by the judge. The appellants and others were gathered en masse in the area prohibited by the restraining order. They were defendants in the action and knew a restraining order had been applied for and might be issued. They were advised of the order and its contents and were told they were violating its terms. Upon being requested to leave, they held their ground and declined to disperse. Instead they greeted the request of the officer with boos. They then sang a good hymn for the inappropriate purpose of conveying a defiant intention to remain where they were.

Indeed, none of the appellants, other than Lester Mathews and Clarence Whitley, denied that they were present at the main gate in a group which completely blocked the entrance. Nor do they deny notice of the injunction or challenge the evidence as to the conduct of the group at the time. They merely deny that they engaged in mass picketing in the prohibited area on the morning of September 14 for the purpose of preventing other persons from working in said plant or intentionally prevented free ingress into the plant and aver "that whatever confusion or disturbance, or congregating, or related activity, which occurred on or about September 14, 1949, by any group of persons, defendants, or otherwise, was to the best of our knowledge and belief caused by genuine confusion brought about by lack of information about what order, if any, this Court had issued, what the contents of any order were, what was required of the defendants in this cause, and others." In addition to this they assert that the injunction has never been served upon them.

The appellants and others were acting in concert in furtherance of a common purpose. Each was a party to what the others did and said in the course of their conduct in violation of the court order. Those who did not boo or sing were present, participating in the mass blocking of the company gate. Hence the exceptions to the evidence as to what was done and said at the time are without merit. Henderson-Snyder Co. v. Polk, 149 N.C. 104, 62 S.E. 904; Saunders v. Gilbert, 156 N.C. 463, 72 S.E. 610, 38 L.R.A.,N.S., 404; State v. Davis, 177 N.C. 573, 98 S.E. 785; State v. Beal, 199 N.C. 278, 154 604; State v. Ritter, 199 N.C. 116, 154 S.E. 62. The testimony as to the statement made by Thomas and as to the booing and singing was competent also as a part of the res gestae and to show the quo animo of the group. Saunders v. Gilbert, supra; State v. Davis, supra; State v. Rumple, 178 N.C. 717, 100 S.E. 622; Safie Manufacturing Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577.

That a witness may use a photograph or map or chart or diagram to illustrate his testimony and make it more understandable to the jury is settled law in this jurisdiction. State v. Shepherd, 220 N.C. 377, 17 S.E.2d 469; State v. Holland, 216 N.C. 610, 6 S.E.2d 217; State v. Mays, 225 N.C. 486, 35 S.E.2d 494; State v. Gardner, 228 N.C. 567, 46 S.E.2d 824.

The oath of a contemner is no longer a bar to a prosecution for contempt. "The question is not whether the respondent intended to show his contempt for the court, but whether he intentionally did the acts which were a contempt of the court." In re Fountain, 182 N.C. 49, 108 S.E. 342, 343, 18 A.L.R. 208; In re Parker, 177 N. C. 463, 99 S.E. 342; Herring v. Pugh, 126 N.C. 852, 36 S.E. 287; In re Young, 137 N.C. 552, 50 S.E. 220; In re Gorham, 129 N.C. 481, 40 S.E. 311.

"The violation of a judicial mandate stands upon different ground, and the only inquiry is, whether its requirements have been wilfully disregarded. If the act is intentional, and violates the order, the penalty is incurred, whether an indignity to the Court or a contempt of its authority, was or was not the motive for doing it." Green v. Griffin, 95 N.C. 50; Nobles v. Roberson, 212 N.C. 334, 193 S.E. 420.

The respondents having sought to purge themselves, the burden was on them to establish facts sufficient for that purpose.

While Lester Mathews denied he was present at the main gate at the time the sheriff appeared and read the injunction, there is positive evidence in the record that he was there in the group and remained until the crowd dispersed.

The plaintiff offered evidence tending to show that Clarence Whitley was at the office gate at the time, and it is conceded by plaintiff that he was inadvertently included in the judgment in lieu of Clarence White. As the court below concluded there was not sufficient evidence that those at the office gate had actual notice of the injunction, Clarence Whitley will be discharged.

The other exceptions and assignments of error are without substantial merit. We find in them no cause for disturbing the judgment. Except as to Clarence Whitley, the judgment entered is

Affirmed.