Wiest v. Dirks
| Decision Date | 16 May 1939 |
| Docket Number | 27168. |
| Citation | 20 N.E.2d 969,215 Ind. 568 |
| Parties | WIEST et al. v. DIRKS. |
| Court | Indiana Supreme Court |
Appeal from Superior Court, Marion County.
Weiss, Seligman & Born, of Indianapolis, for appellants.
Fae Patrick and Garrett W. Olds, both of Indianapolis, for appellee.
This is an appeal from an interlocutory judgment enjoining the appellants from picketing the retail grocery and food store of the appellee. The petition for injunction was heard upon the verified complaint and affidavits and upon the testimony of witnesses, with full opportunity for examination and cross-examination.
In appeals of this character the court is not concerned with the pleadings, and will consider only the evidence which tends to support the judgment. It is not necessary that such a case shall be made as would entitle the plaintiff to relief at all events at the final hearing. It is enough if the evidence shows the case to be a proper one for investigation in a court of equity, and that the facts are such that the thing sought to be enjoined should be prevented until the final determination of the case. Tuf-Tread Corporation et al v. Kilborn, 1930, 202 Ind. 154, 172 N.E. 353.
There is no controversy concerning the facts material to a determination of the appeal. The appellee operates a retail grocery and food store in connection with which he purchases from a jobber, and sells at retail, milk and other dairy commodities processed by the East End Dairy Company. The East End Dairy Company has more than fifty employees, four of whom are members of the appellant union. Representatives of the union demanded that the company sign a contract, by the terms of which it would agree to employ only members of the union and would require, as a condition for continuing employment that all of its employees join the union. This the company refused to do. The appellant Wiest and another representative of the union demanded that the appellee discontinue handling the products of the company. The appellee made inquiry and found that the company was paying wages in excess of the union scale, and that its controversy with the union involved a 'closed shop.' He also ascertained that there were no 'closed shop' dairy products produced in the Indianapolis milk shed. He told the appellants that he would not discontinue handling the products of the East End Dairy Company, and he continued to handle them. The appellants caused appellee's place of business to be picketed. The picketing was peaceful. The pickets carried a sign upon which was printed:
'Please buy Union Dairy Products Only
'This Store sells milk produced
in an unfair Dairy
'East End Dairy is unfair to
organized labor.'
The appellee's business has been interfered with and disturbed by the picketing.
The Indiana Labor Anti-Injunction Statute (Acts 1933, ch. 12, p. 28, section 40-501 et seq., Burns' Ind.St.1933, section 10155 et seq., Baldwin's Ind.St.1934) provides procedure governing injunction actions arising out of labor disputes.
The appellee contends that there is no 'labor dispute,' as defined by the statute, involved in the controversy; that therefore the statute does not apply.
The appellants contend that there is a 'labor dispute' involved; that the statute applies; that the procedural sections of the statute were not followed; and that for that reason the judgment should be reversed. As we view the record, it is not necessary to determine whether or not there is a 'labor dispute' involved.
The procedure provided for in the act was followed with the exception that there was no special finding of facts and no peace officer was made a party to the proceeding.
In the latter respect, however, it is noted that there was no charge of the commission of any acts of violence or trespass against which a policeman or peace officer has power or authority to protect the plaintiff's property, and in such case the statute must be construed as not requiring any showing or finding as to the ability or willingness of a public officer to furnish adequate protection, or as requiring that the officer should be made a party, since there is no necessity for inquiry as to whether such officer is willing or able to protect the plaintiff's property.
If the case involves a 'labor dispute' it was error to refuse to find the facts specially. But, since the material facts are not in dispute, and the controversy as to whether the temporary injunction should issue involved, and now involves, questions of law only, this error was not prejudicial nor does it require a reversal of the judgment. Elliott et al. v. Pontius et al., 1893, 136 Ind 641, 35 N.E. 562, 36 N.E. 421. Section 2-1071, Burns' Ind.St.1933, section 175, Bladwin's Ind.St.1934, provides that no judgment shall be reversed for any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties. Section 2-3231, Burns' Ind.St.1933, section 505, Baldwin's Ind.St.1934, provides that no judgment shall be reversed for any defect in the proceedings which might have been amended in the court below, but such defects shall be deemed to be amended in this court, and no judgment shall be reversed where it shall appear that the merits of the cause have been fairly tried and determined. Section 2-3229, Burns' Ind.St.1933, section 467, Baldwin's Ind.St.1934, authorizes this court to weigh the evidence in cases not triable by a jury, and to award judgment according to the clear weight of the evidence. Since the facts material to a decision are not in dispute, these statutes are controlling. The appeal is from an interlocutory order. Regardless of the result of this appeal, the case remains to be tried upon the merits. To send it back to the trial court, with directions to find the facts specially, when there can be but one finding upon the material facts, would be to, in effect, require the court below to amend its proceedings. Under the statute above referred to, this must be treated as having been done. ...
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