State Ex Rel. Hoosier Engineering Co. v. Thornton , 137 W. Va. 230 ( 1952 )

-Lovins, Judge:

Defendant, L. D. Thornton, complains of the final judgment of the Circuit Court of Kanawha County, entered on August 9, 1951, finding defendant guilty of contempt of court, and sentencing him to confinement in the Kanawha County jail for a period of six months and imposing a fine of $500.00. To this judgment, as later modified by the court on its own motion, this Court granted a writ of error and supersedeas on October 8, 1951.

On August 4, 1951, Hoosier Engineering Company, a corporation, after issuance of process on the same day, filed a bill in chancery, supported by affidavits, in the Circuit Court of Kanawha County against defendant, individually and as president of Construction and General Laborers Local Union No. 1353, and others not involved in this proceeding, alleging the existence of a labor dispute, acts of violence and irreparable injury to plaintiff, and praying that the defendant, and other parties, be restrained from intimidating employees of the plaintiff engineering company, and from doing other acts designed to prevent performance of certain construction work, in Kanawha County.

On the same day the circuit court granted the injunction, prohibiting the defendant Thornton and others from attacking, assaulting, coercing, ’threatening or intimidating any employee of the plaintiff; from damaging or destroying any property belonging to the plaintiff; from congregating near the garage or vehicles of plaintiff; from trespassing upon property of plaintiff or upon or within twenty-five feet of property upon which plaintiff’s work was to be performed; and from doing or committing any other unlawful act to prevent the plaintiff from performing its contract. Peaceful picketing was provided for by the decree.

The injunction decree was served upon defendant on August 6,1951, at 8:45 A. M., by delivery of a copy thereof to him personally. A copy of the decree was posted on an International truck owned by the engineering company on August 4, 1951, and at 1:00 A. M., August 6, 1951, a copy of the decree had been posted on the door of the garage occupied by the enginering company.

On August 7,1951, pursuant to a petition filed by Hoosier Engineering Company, under the same style as the original bill of complaint, defendant, and others not here involved, were summoned under a rule issued by the Circuit Court of Kanawha County to show cause why they should not be held in contempt of court for violating the above mentioned injunction decree. The rule was made returnable August 9, 1951, at 9:30 A. M. On the return day of the rule a joint answer of defendant and other parties named in the rule was filed, denying the allegations contained in the petition praying for the rule. Before the hearing on the rule began, the trial court called to the attention of counsel the fact that the proceeding should be styled “State of West Virginia at the relation of Hoosier Engineering Company,” and permitted an amendment to that effect, over defendant’s objection. Immediately thereafter, counsel for defendant moved the court for a continuance, upon the ground that counsel had not had sufficient time to investigate, talk with witnesses, and prepare the case for trial. The trial court overruled the motion, to which ruling defendant by counsel excepted. Counsel for defendant then made a motion for the separation of witnesses, and this motion was also overruled, and exception was duly saved.

At the hearing relator, Hoosier Engineering Company, offered testimony of a number of its employees to detail the disturbances which took place on August 6th and 7th, 1951, which were alleged to have been violations of the injunction decree, and particularly with reference to the conduct of defendant. We find very little evidence tending to establish knowledge or information on the part of defendant as to the issuance of the injunction decree, and none as to the contents thereof, prior to the service of the copy of the decree on him at 8:45, on the morning of the sixth of August. Defendant testified that he had no such information before the service of the copy of the decree. Since the trial court, however, found that defendant had actual knowledge thereof, the facts will be dealt with as if defendant did obtain such information before 8:45 o’clock on the morning of the sixth of August, as indicated in the testimony of Roy Allen, who was an employee of the engineering company and testified on behalf of that company. Defendant could not, of course, be guilty of contempt in regard to an act occurring before he had received notice or information of the issuance of the injunction against him.

There is no question that a large number of men belonging to the union of which defendant was president, was gathered at or in the vicinity of the garage of the engineering company, in the City of Charleston, prior to 8:45 on the morning of the sixth. Apparently the men began to gather there about six o’clock and continued to arrive until after ten o’clock, when the trucks of the engineering company left the garage. It seems certain that certain acts were committed there, both before and after 8:45, which would constitute violations of the injunction decree, assuming that proper notice of the injunction had been received by the parties committing the acts. The problem here is to determine whether defendant committed or participated in the commission of any such act or acts after having received information of the issuance of the injunction.

The principal acts claimed to constitute such violations during- the time the men were congregated together about the garage, consisted of threats made against the employees of the engineering company; the moving of a pickup truck belonging to the engineering company so as to block the removal of other trucks from the garage; an attempt to overturn another truck which an employee of the engineering company undertook to remove from the garage; an attack upon an employee of the company while attempting to remove a truck from the garage; the throwing at the employees of the engineering company of certain objects including “tomatoes, apples, hard biscuits and so forth.”; and threatening gestures with shovels, rubber hose and other weapons. The exact hour of the commission of these alleged violations can not be determined with any degree of accuracy. They all occurred before ten o’clock of the morning of the sixth.

Considerable evidence relates to the interference, by three or four of the members of the union, with the removal of a truck from the garage about ten o’clock of the morning of the sixth. City police officers were on the scene at that time and prevented any serious trouble. Defendant was across the street from the garage at the time and immediately crossed the street with the police to the truck. But there is no indication as to whether he was opposing the action’ of the police or assisting in preventing any improper action by the members of the union. Thereafter the trucks of the engineering company moved out of the garage, loaded with its employees, and were driven to a point near where work was to be performed. There is no question that defendant stayed in the vicinity of the garage of the engineering company until after the trucks were moved out, and that he moved about among the members of his union then assembled there. No person testified to the effect, however, that he heard defendant make any threat against employees of the engineer ;ng company, or that anyone saw him engaged in any act interfering with that company’s employees or removal of its trucks, or even heard him say anything to any member of the union indicating his approval of any such action. On the other hand, there is very substantial evidence showing that members of the union continued to arrive at the scene until after the trucks left the garage, and that defendant remained there, after having been served with a copy of the injunction decree, to advise them, as well as those previously present, of the issuance of the injunction and of the order limiting the actions of the union to peaceful picketing and, in general, to prevent any violation of that order.

After the trucks of the engineering company left the garage a number of union members, riding in probably twelve or thirteen automobiles, followed them to the vicinity of Grapevine Hollow, several miles from Charleston, and defendant drove one of the automobiles carrying union members. These cars parked a distance estimated at from one hundred and fifty to three hundred feet from where the trucks parked. No violence ensued, though some threats appear to have been made by some of the union men, not identified, who arrived in the automobiles. Such threats were discontinued upon orders from defendant. After alighting from his automobile defendant approached Roy Allen, who apparently was in charge of the engineering company’s employees and who belonged to a different union, apparently in an effort to negotiate a settlement of the differences. Allen admits that he and defendant discussed the matter of the men working for the engineering company crossing the picket line. Some conflict exists in the evidence as to what was actually said by defendant at that point. But, without detailing the statements of the various witnesses, the evidence appears to us to clearly show that defendant permitted or countenanced no act of violence or intimidation. Allen testified that the union men ceased making threats upon orders from defendant, indicating, we think, that the efforts of defendant were to prevent violence or intimidation, not to invite or countenance such acts. On the following morning, August 7, a large number of union men gathered at the garage of the engineering company before time for the company’s trucks to leave the garage. Defendant was at the garage that morning and testified that he was there for the purpose of assisting in establishing a picket line, as was his duty as president of the union, and as authorized by the injunction decree, and that it was usual, in such circumstances, for members of the union to report each morning to find whether any orders as to work had been issued. No difficulty was experienced by the company in removing its trucks from the garage, and no act of violence or intimidation is charged to have occurred there on that morning. A number of automobiles, carrying union men, followed the trucks toward the place of work of the company employees. The trucks did not proceed to that point, but passed the intersection of the public road leading to that point, and some distance beyond the intersection turned back toward Charleston to the garage. No trouble was experienced, unless the delay apparently caused from the turning of the automobiles on the highway be considered as such, except that defendant, while the trucks and automobiles were being driven back toward Charleston, is charged with having improperly driven his own automobile by weaving in and out of the line of trucks and in not properly yielding the road to the trucks, at different times. We think such charge may be entirely disregarded as acts of intimidation, since the employees had already voluntarily decided not to work that day, and since the highway was then being patrolled by members of the Department of Public Safety.

Defendant testified to the fact that he participated in none of the acts described as constituting a violation of the injunction decree; that he did not direct or countenance the same; and that he made no threats against any of the engineering company’s employees, or otherwise. He contends that his efforts at all times, after receiving information of the injunction, were to instruct and persuade the members of the local union of which he was president to obey the injunction decree. He is strongly supported in his contention by a large number of witnesses who observed his actions during the times material, and heard his conversations. Some of these witnesses are in no way connected with either the engineering company, the union doing work under contract with that company, or the local union of which defendant is president.

Considering the evidence, with all proper inferences arising from facts proven, we find it insufficient to support the trial court’s conclusion that defendant was guilty, beyond any reasonable doubt, of having violated the injunction decree. The most that can be stated in favor of the finding is that defendant remained in the vicinity of the garage after the service of a copy of the decree upon him; that he conferred with the union men present, directing them to discontinue threats of violence; that he drove an automobile, along with other union members’ automobiles, to Grapevine Hollow and there talked with Roy Allen about their differences and there persuaded or directed the .union men to cease making threats, or committing acts of violence and that on the morning of the seventh, he was" again in the vicinity of the company’s garage, and again drove an automobile toward the vicinity of the place of the company’s work, and that he obstructed the movement of the company’s trucks on the highway, while returning to the garage, after the employees had elected not to perform any work that day. In State v. Bittner, 102 W. Va. 677, 136 S. E. 202, 49 A. L. R. 968, Point 2, syllabus, it is held: “A trial for criminal contempt is a quasi criminal proceeding, and the rules of evidence in criminal trials apply thereto. In such trial the guilt of the accused must be proved beyond reasonable doubt.” See State v. Eno, 135 W. Va. 473, 63 S. E. 2d 845; State v. Davis, 50 W. Va. 100, 40 S. E. 331; State v. Ralphsnyder, 34 W. Va. 352, 12 S. E. 721; also, defendant was entitled to the benefit of a presumption of innocence, as in other criminal prosecutions. Calamos v. Commonwealth, 184 Va. 397, 35 S. E. 2d 397.

Inasmuch as another trial of the contempt charge may be had, we are of the opinion that certain of the other errors assigned by defendant should be discussed briefly. As to the contention of defendant that the court erred in not granting the continuance of the hearing, we find no error. The question of the granting of a continuance was a matter within the sound but reviewable discretion of the trial court, and no abuse of that discretion has been shown. State v. Eno, supra.

As to whether the court abused its discretion in denying the motion, timely made, for a separation of witnesses, the members of the court participating in this decision not being in accord, are of the opinion that any discussion of-the question here would not be helpful.

There was no error in the action of the court in permitting the amendment relating to the style of the proceeding. No prejudice to the defendant could possibly have resulted therefrom. Alderson v. Commissioners, 32 W. Va. 640, 9 S. E. 868, 5 L. R. A. 334, 25 Am. St. Rep. 840.

Defendant contends that the court erred in admitting evidence of violations of which he was not informed, either in the petition for the rule or in the rule. Neither the petition nor the rule states any violation as having occurred on the seventh of August. Considerable evidence was admitted relating to the activities of defendant on the seventh, and the court found and held that defendant had violated the injunction decree by leading the union men behind the company trucks to Grapevine Hollow, on August 7, and that the company employees were, by the fact that a large number of union men were present, prevented from doing any work on that day. Upon objection to the introduction of such evidence, counsel for defendant stated his reason for the objection in this lan-gauge: “I object, because under the citation in the rule there is no charge made, or in the petition, that anything occurred on the 7th. It is all confined to the 6th of August and prior thereto.” The court ruled, “The petition is very general. I think if it occurred at any time after the notice was served it is proper.” Whereupon counsel for relator stated: “My understanding is that all acts in violation of the injunction from and after the date of service, is proper.” The court then replied, “That is correct. The objection is overruled.” An exception was saved. As before noted, considerable evidence relating to alleged violations on the seventh was admitted by the court. We are of the view that the ruling of the court constituted prejudicial error.

It is true, of course, that the exact day of a violation may not be material, but here it is not the day that is involved, but the fact that no violation is charged. The violations charged as having occurred on the sixth are separate and distinct violations. To hold that any violation of an injunction decree can be proved if it occurred after service of notice of the issuance of the injunction, whether or not charged in any pleading, would be tantamount to holding that a defendant could be convicted upon proof without having had any notice of the charge against which he was entitled to defend himself. In State v. Lewis, 113 W. Va. 529, 168 S. E. 812, this Court stated: “* * * And, since a prosecution for contempt is in the nature of a prosecution for a crime, such affidavit or information should state the acts constituting the offense with as great certainty as is required in criminal proceedings. State v. Bittner, 102 W. Va. 677, 136 S. E. 202; State v. Davis, 50 W. Va. 100, 40 S. E. 331; State v. Ralphsnyder, 34 W. Va. 352, 12 S. E. 721; State v. Cunningham, 33 W. Va. 607, 11 S. E. 76.” In State v. Komar, 113 W. Va. 526, 168 S. E. 810, this Court held: “To support an adjudication of contempt the information or affidavit, upon which the rule is issued, must show on its face facts sufficient to constitute the offense.” See State v. Gibson, 33 W. Va. 97, 10 S. E. 58; 17 C. J. S., Contempt, Section 72.

Relator would rely upon the rule followed in Farley v. Farley, 136 W. Va. 598, 68 S. E. 2d 353, to the effect that where a case is tried by the court in lieu of a jury, the admission of illegal or improper testimony will not constitute reversible error. That rule, however, can not be applied in the instant proceeding. It is based upon a presumption that the trial court would give no weight to illegal or improper evidence. But here the evidence objected to related to supposed violations of the injunction decree without any foundation for the supposed charges having been laid in any pleading, and the trial court announced that he believed the evidence to be proper, and actually held that the defendant had violated the injunction, the holding being wholly based upon that evidence. With the record clearly showing that the trial court did give weight to the illegal and improper evidence, the presumption no longer existed. It was clearly rebutted.

The conclusions reached herein dispose of all the material assignments of error briefed. The finding of the guilt of defendant is set aside, the judgment of the trial court is reversed, and the case is remanded to the Circuit Court of Kanawha County.

Reversed and remanded.