393 So.2d 1290 (Miss. 1980), 51488, N. A. A. C. P. v. Claiborne Hardware Co.

Docket Nº:51488.
Citation:393 So.2d 1290
Party Name:NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE et al. v. CLAIBORNE HARDWARE COMPANY et al.
Case Date:December 10, 1980
Court:Supreme Court of Mississippi

Page 1290

393 So.2d 1290 (Miss. 1980)

NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE

et al.

v.

CLAIBORNE HARDWARE COMPANY et al.

No. 51488.

Supreme Court of Mississippi.

December 10, 1980

Rehearings Denied March 4, 1981.

Page 1291

Alix H. Sanders, Greenwood, William R. Richardson, Jr., Arthur M. Weisburd, James Robertson, Lloyd N. Cutler, Washington, D. C., Frank R. Parker, Julie Ann Epps, Royals,

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Taylor & Epps, A. Spencer Gilbert, III, Gilbert & Moore, Jackson, for appellants.

Crane D. Kipp, Shell, Buford, Bufkin, Callicutt & Perry, Christopher J. Walker, Upshaw & Ladner, Dixon L. Pyles, Pyles & Tucker, Jackson, W.E. Gore, Jr., Jackson, for appellees.

Before SMITH, P. J., and SUGG and COFER, JJ.

COFER, Justice, for the Court:

Beginning April 1, 1966, a boycott of retail merchants of Port Gibson and Claiborne County was in effect for some length of time. This suit, in the Chancery Court of the First Judicial District of Hinds County, resulted from the boycott. The suit, brought by Claiborne Hardware Company and twenty-three other complainants, retail merchants in Claiborne County, and filed October 31, 1969, named as defendants the National Association for the Advancement of Colored People (NAACP), Mississippi Action for Progress (MAP), a domestic non-profit corporation and 146 individual defendants (individuals), (NAACP, and individuals, NAACP, et al.), these individual defendants largely making common cause with defendant NAACP in the suit. The bill of complaint charged defendants with conspiracy to injure and ruin the businesses of the several complainants by tortious involvement with complainants' rights to pursue their lawful trade and business through defendants' conspiracy, boycott, interference, and restraint of trade. In their suit complainants alleged and charged:

1. The complainants charge that beginning on or about April 1, 1966, and continuing daily thereafter each, every and all of the defendants, corporate, and individual defendants, hereinbefore set forth, combined and entered into an agreement and conspiracy, with a unity of design and purpose and a preconceived plan, the malicious and unlawful object of which was to ruin and cause injury to the hereinbefore named businesses of the complainants and others; that said defendants did not enter into said conspiracy and combination for the purpose of protecting or advancing any legitimate interests of their own; and that said act constituted an unlawful conspiracy.

2. The complainants charge that the means employed by the defendants, and each of them in carrying out and to effect the purpose of the illegal and unlawful combination, plan, scheme, and conspiracy, was and is likewise malicious, illegal and unlawful; that the defendants have since April 1, 1966, daily engaged in and committed malicious, illegal and unlawful acts of injurious falsehoods, deception, force, intimidation, threats, coercion and violence against the customers and prospective customers of the complainants.

3. The complainants charge that in pursuance of the aforesaid conspiracy to injure the businesses of complainants and others, that the defendants and each of them executed and are continuing to carry out said malicious, illegal and unlawful plan and scheme to the great damage of complainants; and that said conspiracy on the part of all and each of said defendants was induced in malice toward the complainants and was and is without justification or lawful purpose; and that its objects as aforesaid have been and are being accomplished by illegal means and in an unlawful manner.

4. The complainants charge that on or about April 1, 1966, and daily thereafter, the defendants and each of them entered into an unlawful combination among themselves and others who are unknown to complainant to illegally bring about a secondary boycott to the businesses of the complainants and others with the intent and purpose of causing loss to the complainants and others by coercing the customers and prospective customers, against their will, to withdraw and withhold their beneficial business intercourse from the complainants by the infliction of physical injury to said customers and prospective customers on their person and property; by the threat of physical injury; by intimidation so as to put said customers and prospective customers in fear of such injury; through the fear of

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incurring the displeasure persecution and vengeance of said combination; and by threats to said customers that unless they withdrew or withheld their beneficial business intercourse from the complainants and others against whom the conspiracy, combination and concert of action is directed, that said combination would cause injury to said customers in their person, property and business. Complainants further charge that by the use of threats, intimidation, and coercion, the said defendants intended to overcome and did overcome the will of the customers and prospective customers of the complainants, and by such unlawful and illegal means, intended to and did compel said customers to refrain from trading with the complainants. Complainants further charge that said defendants committed acts and spoke words to said customers and prospective customers of complainants that caused them to fear for their lives and safety; and that they were in such apprehension of damage that said customers were and are so influenced thereby as to prevent them from freely trading with complainants, as said customers so desire to do; and that the complainants assert that they at no time material hereto had any dispute, disagreement or controversy with any of the defendants herein or the combination thereof. Complainants further charge that the said illegal secondary boycott was and is an unlawful invasion of their property rights; that complainants have been caused to suffer great harm and damage as a result thereof; and that complainants, because of said malicious attempt to irreparably injure them and each of them, without purpose, by said secondary boycott, are entitled to recover damages jointly and severally from said defendants.

(These allegations were used as complainants' basis for charging interference and restraint of trade on defendants' part, also.)

After delay in the United States District Court and the Fifth Circuit Court of Appeals (Henry v. First National Bank of Clarksdale, 50 F.R.D. 251 (N.D.Miss.1970), 444 F.2d 1300 (5th Cir. 1971), cert. denied, 405 U.S. 1019, 92 S.Ct. 1284, 31 L.Ed.2d 483 (1972), rehearing denied, 406 U.S. 963, 92 S.Ct. 2057, 32 L.Ed.2d 351 (1972)), trial was begun on June 11, 1973, on the Bill of Complaint and Cross Bills of some of the defendants. After testimony was taken over a long period of time, the chancellor rendered opinion August 9, 1976, which was followed by decree consistent therewith dated and filed on August 19, 1976.

The complainants had prayed for actual damages alleged to be in the amount of $3,542,466.04. The chancellor awarded aggregate money decree to them in the amount of $950,699 plus solicitor fees in the amount of $300,000, a total recovery of $1,250,699. Chancery jurisdiction was availed of for use of the attachment in chancery statute (Miss.Code Ann., § 11-31-1 (1972)) and for injunction. Injunction against use of guards at stores, persuading or otherwise procuring potential customers to withhold their patronage, and against individual activity by the defendants was ordered by the decree.

(Although the granting of injunction has been assigned as error, the error has not been argued, and NAACP, et al. say, at the conclusion of their brief "... the injunctive aspects of the case are now moot ....").

Appeal was taken therefrom to this Court. Defendants-appellants successfully invoked the aid of the federal court for relief against full compliance with our appeals supersedeas statute (Henry v. First National Bank of Clarksdale, 424 F.Supp. 633 (N.D.Miss.1976), aff'd 595 F.2d 291 (5th Cir. 1979)). Appellants do not assign as error the chancellor's failure to award relief on their cross bills, nor is there a cross appeal by the complainants as to amount of the decree nor as to the court's dismissal of the cause as to certain of the defendants.

On appeal, twenty-eight errors are assigned, but appellants' arguments are made as to the following propositions:

1. The appeals for a boycott to protest racial discrimination were lawful communications protected by the First Amendment.

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A. The allegedly "secondary" character of the boycott is both irrelevant and unproven.

B. The chancellor's conclusions regarding intimidation are unsupported by record and Constitutional limitations.

2. All of the three theories of liability adopted by the chancellor were erroneous.

A. Mississippi's anti-boycott statute cannot support the finding of liability.

1. The statute purports to forbid activity protected by the First Amendment and is therefore unconstitutional on its face.

2. Retroactive application of the anti-boycott statute was erroneous under state law and deprived appellants of due process of law.

B. Mississippi's trade restraint statutes do no apply to the Port Gibson boycott.

C. The common law of conspiracy to commit tortious interference with business does not support the finding of liability.

3. The chancellor erred in awarding damages without first separating out the amount of loss resulting from Constitutionally protected activity.

4. The award of damages was speculative and improper in many respects.

A. The chancellor erred in awarding damages for goodwill.

B. The chancellor erroneously depended upon indirect evidence of lost profits where more reliable evidence was available.

C. In obvious ways, the appellees' theories for calculating lost profits were improper and yield only speculative results.

D. The chancellor erred in failing to correct for appellees'...

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