Wagner v. Commercial Printers Inc.

1. "An attachment for contempt in violating an injunctive order, though having some of the characteristics of a criminal proceeding, is so connected with the injunction that a writ of error to review a judgment imposing a fine or a term of imprisonment for such contempt should be treated as an equity case within the constitutional provision relating to the jurisdiction of this court."

2. Contempt may be civil or criminal. In the former the proceeding in attachment is to enforce compliance with an order of court made for the protection of some right of the complaining party, whereas in criminal contempt the proceeding is to punish the offender for disrespect to or contumacious conduct towards the court.

(a) The contempt with which the defendant was charged was civil contempt, in that the act complained of was one clearly in violation of an injunctive order which was issued to protect the right of the petitioner, the employer, to be free from violence towards its property or its employees and those persons seeking to work for it, either upon its property or at any place. This being a civil case, a preponderance of the evidence would be sufficient to authorize a finding against the defendant.

(b) The evidence was sufficient to authorize the court to find that the defendant was guilty of civil contempt in the violation of the injunctive order here involved.

No. 15986. NOVEMBER 10, 1947. On April 12, 1947, Commercial Printers Inc. filed in the Superior Court of Muscogee County, Georgia, a petition against the members of the International Printing Pressmen and Assistants Union of North America, A.F.L., members of Columbus Printing Pressmen and Assistants Union No. 252, and other named defendants, individually and as representatives of the respective unions, seeking temporary and permanent injunction against them to prevent them from committing certain acts against the petitioner's property and its employees and persons seeking employment with it. A temporary restraining order was issued and, before a hearing was had by the judge, the parties entered into a written stipulation, waiving an interlocutory hearing and agreeing that the court issue an interlocutory order enjoining the defendants in particulars which are enumerated in the order of the court on April 26, 1947, in pursuance of the agreement, the relevant portion being that the defendants were enjoined until the further order of the court from "interfering with or damaging petitioner's property; interfering with, coercing or molesting in any manner whatsoever the employees of petitioner in their efforts to work for petitioner, or interfering in any manner whatsoever with persons seeking employment with petitioner; threatening or exhibiting any threats of violence against petitioner, the employees of petitioner or persons seeking employment with petitioner, either on the property of petitioner or in any place whatsoever." All rights to contest a permanent injunction were reserved in the defendants, and the defendants also filed demurrers and an answer.

On July 25, 1947, Commercial Printers Inc. filed in the said court an application for attachment of Emmitt J. Wagner, one of the defendants, for contempt of court, alleging that on July 24, 1947, the defendant Wagner, without any just cause whatsoever and for the purpose of preventing one J. H. Wilson, an employee of the petitioner since July 21, 1947, from continuing in its employ, violently assaulted, struck and beat the said Wilson with bare fists, striking him numerous blows; that at the time of the assault Wilson was seated in a swing on the porch of his own home, and the assault commenced while he was so seated; and that the assault constituted a violation of the order of April 26, 1947, in which the defendants were enjoined until the further order of the court as hereinbefore set forth. It was also alleged in the petition that the said assault by Wagner constituted contempt of court. Upon the hearing after the issuance of a rule nisi as prayed, the evidence was substantially as follows:

J. H. Wilson testified: "I am at present employed by Commercial Printers Inc. . . I reported for work Monday July 21. However, I did not go to work until Friday night. This was the day following Mr. Wagner's assault upon me, which was on Thursday, the 24th. At the time I reported for work on Monday, July 21, there were pickets on the picket line when I went in. At the time the assault occurred I was sitting on my porch smoking my pipe. This was at 725 Second Avenue. Mr. Wagner lives at the same house upstairs at 725 1/2 Second Avenue. I heard Mr. Wagner and Mr. Greene coming up the street laughing and talking in an unusual loud tone. When they got up on the porch they asked me to have a drink and were very friendly. I declined to drink and went into the house and came back and was sitting in the swing when Mr. Wagner came down the steps. He walked across over on my porch and said, ``Wilson, I think you are a [an obscene epithet] for doing the union that way,' and hit me. I was sitting in the swing. He hit me several times while I was sitting in the swing before I could get out. He hit me on the side of the head and on the arm and shoulders and other places. He gave me a little bit of a black eye. There were blue marks on my shoulder for several days and scratches on my arm. I had a mark above my eye for several days. I got up off the swing and was fighting him back and turned around and Mr. Greene came down the steps. I ran off the porch and ran next door. Mr. Greene did not assault me in any way. Mr. Wagner pursued me one or two steps up the front steps of the next house, and Greene came up to Mr. Wagner and said, ``Come, and let's go, Emmitt.' He said it two or three times and they finally went back upstairs and I went back to the house. About that time the officers got there. Mr. Morgan called me up Sunday night, July 20, and asked me if I would like to go back to work, and I told him, ``I would.'. . I was originally going in Monday, and then I was going in Wednesday of the same week, but I did not go to work until Friday of that week. I wasn't feeling up to par. I did not inform Mr. Wagner at any time that I had gone back to work. I did not say these words or words to this effect to Mr. Wagner: ``I am going back to work. Why don't you sons of bitches come on and go back to work, too?' That isn't why the occasion took place. I tried to fight back at Mr. Wagner when he struck me. I am not a member of the union. I resigned on July 21 after I broke the picket line. Whenever you break the picket line you resign. I told Mr. Harrell, who is the president of the local union, on July 21 that I wasn't going to be a member no more. I resigned by telling Mr. Harrell, president of the local union, that I was no longer a member. . . Both Mr. Wilson [Mr. Wagner?] and Mr. Greene were active members of the union at that time [when Wilson was struck by Wagner]. I did not turn in my union card. I tore it up."

William C. Sapp, police officer, testified: "A week ago last night I was called to 725 Second Avenue. I found Mr. Wilson on his front porch. I called Mr. Wagner from upstairs. I told him that Mr. Wilson had reported that he had jumped on Mr. Wilson, and I asked Mr. Wagner why he did this. Mr. Wagner stated that Mr. Wilson had quit the union, that they were on strike, and had practically caused the union to lose the strike by quitting and going back to work, and he thought he had a perfect right to get on him. Mr. Wagner further stated that there would continue to be trouble with Mr. Wilson so long as Mr. Wilson tried to work at Commercial Printers where he went back to work since he quit the union, that as long as Mr. Wilson worked there there would be trouble. I placed Mr. Wagner under arrest for disorderly conduct."

Emmitt J. Wagner, the defendant, testified: "The first that I learned that Mr. Wilson was an employee of the Commercial Printers was when I came out of my door last Thursday night week. Mr. Wilson said, ``Why don't you sons of bitches wise up and go back to work like I am going tomorrow?' I then walked over and told him I didn't like his ratting on us, and so I hit him. I stated to Mr. Sapp, the investigating officer, that Mr. Wilson was going back to work. I did not state, as Mr. Sapp said, that I knew Mr. Wilson had already gone back to work. The first time I knew that Mr. Wilson was going back to work was on that Thursday night when the altercation took place. Mr. Wilson was a member of the same union that I belong to. The reason I struck Mr. Wilson was because he said, ``Why don't you sons of bitches wise up and come back to work?' It was about five minutes after the altercation took place that I talked to Mr. Sapp, the investigating officer. I did not know that Mr. Wilson had resigned the union. I was present at a trial in the recorder's court earlier this morning. I stated at that trial that my reason for asking Mr. Wilson to go upstairs and have a drink was to try to persuade him not to go back to work if he did mean to return to work. I had heard a couple of rumors that Mr. Wilson was going back to work, and he had not shown up for two union meetings in the last week. I live where he does and know that he didn't go to work, but I also knew that he had been wanting to go back to work ever since we had been out, so I just took it that he did mean to go back to work. Mr. Wilson did not agree to have a drink with me, but that is unusual for he usually drinks all he can bum. After Mr. Wilson declined to have a drink with me I went upstairs, washed up, and changed clothes. I came back downstairs and started out when Mr. Wilson made the statement about which I have already testified. Mr. Wilson was sitting in his porch swing at the time I struck him."

William C. Sapp, police officer, recalled, testified: "At the time I talked to Mr. Wagner a week ago last night, he did not mention anything about Mr. Wilson calling him a son of a bitch."

At the conclusion of the evidence the court, on August 1, 1947, entered judgment finding the defending guilty of contempt of court in violation of the injunction order of April 26, 1947, and directing the sheriff of the county to "arrest the body of said defendant, Emmitt J. Wagner, and commit him to the common jail of Muscogee County, Georgia, then and there to be kept for a period of twenty (20) days from the date hereof; provided, however, said defendant Emmitt J. Wagner may serve the last fifteen (15) days of said commitment upon probation upon his paying a fine of Fifty and No/100 dollars ($50) on or before the fifth day from the date he is committed to jail." The exception here is to that judgment. 1. The question having been raised upon the argument before this court whether or not it has jurisdiction in a case of this kind, and it being the duty of the court to always inquire for itself whether or not it has jurisdiction, such an investigation has been made and it is now ruled that this court has jurisdiction. In Tomlin v. Rome Stove Range Co.,183 Ga. 183 (1) (187 S.E. 879), it was held: "An attachment for contempt in violating an injunctive order, though having some of the characteristics of a criminal proceeding, is so connected with the injunction that a writ of error to review a judgment imposing a fine or a term of imprisonment for such contempt should be treated as an equity case within the constitutional provision relating to the jurisdiction of this court. [Citing.] While there are some decisions in this State and elsewhere tending to a different conclusion, the question seems to be controlled by the decision in Hayden v. Phinizy, supra [67 Ga. 758]."

2. It is contended by the plaintiff in error that the present proceeding is for criminal contempt, wherein the guilt of the alleged offender must be established by the evidence beyond a reasonable doubt, and the evidence was not conclusive as to whether the assault was made because of offensive language by Wilson or to intimidate and deter him in his employment with Commercial Printers Inc. It is further contended that the alleged violation of the injunctive order must have been within the terms of the order which can not be extended by implication, and that the evidence does not show such violation, neither the defendant nor the victim of the assault being near the place of business of the employer at the time of the assault and it having no relation thereto.

Contempt may be civil or criminal. In the former, the proceeding in attachment is to enforce compliance with an order of court made for the protection of some right of the complaining party. In criminal contempt, the proceeding is to punish the offender for disrespect to or contumacious conduct towards the court. See Cobb v. Black, 34 Ga. 162; Warner v. Martin,124 Ga. 387, 390 (42 S.E. 446, 4 Ann. Cas. 180); Carson v.Ennis, 146 Ga. 726, 728 (1) (92 S.E. 221, L.R.A. 1917E, 650); Davis v. Davis, 138 Ga. 8 (74 S.E. 830); Beavers v. Beavers, 148 Ga. 506 (2) (87 S.E. 65); Swanson v.Douglas, 150 Ga. 650 (105 S.E. 161); Jones v. State,166 Ga. 553 (144 S.E. 106). The injunctive order here entered was in pursuance of an agreement between the parties, under which the defendants were to be enjoined from committing certain acts towards the property of Commercial Printers Inc., its employees and those seeking to become employees, and from "threatening or exhibiting any threat of violence against petitioner, the employees of petitioner of persons seeking employment with petitioner, either on the property of petitioner or in any placewhatsoever." (Italics ours.) No argument is necessary to demonstrate that the injunctive order in question was entered to protect the right of Commercial Printers Inc. to be free from acts of violence of the defendants towards its property and from intimidation or threats of violence towards its employees, actual or prospective, calculated to cause them to desist from their efforts or intentions to work for the company. Clearly the attachment here was, under the above-cited authorities, for alleged civil contempt, rather than for disrespectful or contumacious conduct towards the court. It follows that, this being a civil case, the rule as to preponderance of the evidence being sufficient to authorize a verdict is applicable.

An examination of the evidence shows that the judge was authorized to find that the defendant Wagner had violated the injunctive order. He stated that he struck Wilson because of alleged abusive language, but the police officer testified that at the time he talked to the defendant shortly after the assault Wagner did not mention anything about such language being used by Wilson and Wilson denied its use. The judge was authorized to find that the real cause of the assault was resentment toward Wilson in quitting the union and entering the employ of Commercial Printers Inc., though he had not then reported for work, and to deter him from pursuing such employment; that Wagner first sought to dissuade Wilson from working by the gentler method of a social drink, but failing in this, he later rejoined Wilson on the front porch of the latter, and with an obscene epithet reproached and beat him "for doing the union that way." The police officer testified that Wagner stated to him that Wilson had practically caused the union to lose the strike by quitting and going back to work, and that he thought he had a perfect right to "get on him" and there would continue to be trouble with Wilson so long as he worked with Commercial Printers Inc. Wagner himself testified that he had heard rumors that Wilson was going back to work and concluded that he meant to go back to work. The contention that the finding was not authorized, since the assault was not at the place of business of the employer and had no relation to it, can not be sustained under the evidence and the order of court prohibiting acts of violence "either on the property of petitioner or in any place whatsoever." Nor was the assault without the terms of the order and punishable only by an extension of such terms by implication. It bore an actual relation to the business of the employer, since such conduct was calculated to cause the victim to remain away from his employment lest the attack be renewed against him. The judgment rendered on a hearing of a contempt case will not be disturbed by this court unless the judge has grossly abused the sound discretion vested in him in such a case. Warner v.Martin, supra; Board of Education v. Loganville, 166 Ga. 640 (144 S.E. 25); Patten v. Miller, 190 Ga. 152, 159 (8 S.E.2d 786). No abuse of discretion is shown by the record here.

Judgment affirmed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.