Borden Co. v. Local No. 133, Etc.

• Decision Date: 10 April 1941
• Docket Number: No. 11227.,11227.
• Citation: 152 S.W.2d 828
• Parties: BORDEN CO. et al. v. LOCAL NO. 133 OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, STABLEMEN, AND HELPERS OF AMERICA et al.
• Court: Texas Court of Appeals

152 S.W.2d 828

BORDEN CO. et al. v. LOCAL NO. 133 OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, STABLEMEN, AND HELPERS OF AMERICA et al.

No. 11227.

Court of Civil Appeals of Texas. Galveston.

April 10, 1941.

Rehearing Denied May 29, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Suit by the Borden Company and Sam Person, doing business as the Brazos Ice Company, against the Local No. 133 of the International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America, and others, wherein the Borden Company sought an order restraining defendants from picketing its customers, and plaintiff Sam Person, doing business as the Brazos Ice Company, sought an order restraining defendants from picketing his place of business. From an order granting application of plaintiff Sam Person, doing business as the Brazos Ice Company, and denying the application of the plaintiff Borden Company, the plaintiff Borden Company and the defendants appeal.

Affirmed.

Tom M. Davis, of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for appellee Sam Person and appellant Borden Co.

Combs & Dixie, of Houston (W. A. Combs of Houston, of counsel), for Local No. 133, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, L. A. Rankin, and Frank Prohl, both appellees and appellants.

MONTEITH, Chief Justice.

This is an appeal from an order of the district court of Harris County granting the application of Sam Person, doing business as Brazos Ice Company, for a temporary injunction restraining Local 133 of International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers of America and its members, hereinafter called defendants, from picketing his place of business, and denying an application of the Borden Company for a temporary injunction restraining defendants from picketing its customers.

At the request of the Borden Company, the trial court filed findings of fact and conclusions of law. The Borden Company excepted to certain of said findings.

The court found, on what we deem to be sufficient evidence, that Sam Person conducted a retail business in the City of Houston in which he sold various articles, including milk purchased from the Borden Company, and that he had developed a substantial patronage and good will; that he employed three men in the conduct of his business, all of whom were members of the Ice Handlers Union with which he had a contract covering his employees, and that his employees were not members of or eligible for membership in defendant union and that there was no dispute of any kind between him and the Ice Handlers Union or any of his employees, and that neither he nor any of his employees had a labor dispute of any kind with defendant union. It found that in January, 1941, defendant union, acting through its representatives, requested Person to discontinue the sale of milk processed by the Borden Company, and that upon his refusal to do so, defendant union caused his place of business to be picketed; that the pickets moved slowly back and forth on the sidewalk in front of his place of business carrying a large cardboard sign on which was printed: "This place is selling milk from dairies who locked out their employees. Milk Drivers Union 133. Affiliated with A. F. of L." The court found that the picketing in question was not picketing of Person's place of business as such, but was the picketing only of the dairy-products purchased by Person from the Borden Company; that said Pickets conducted themselves in an orderly, proper and peaceful manner, though at times customers were required to bring their cars to a stop, to permit the picket to pass, before driving in. It was found that during the time Person's place of business was picketed his loss in gross receipts was from $10 to $15 per day. The court found that the picketing of Person's place of business will continue to cause him irreparable damage and he has no adequate remedy at law, since defendant union has no property of any kind and is unable to respond in damages.

The court found that defendant union had a bona fide labor dispute with the Borden Company relative to the operation of its business and plant in Houston, but that no labor dispute of any kind existed between it and any of the Borden Company's customers, the picketing of whom was sought to be enjoined; that in January, 1941, it caused the places of business of four customers of the Borden Company, including the Brazos Ice Company, to be picketed by means of pickets carrying the cardboard sign hereinabove referred to; that threats of picketing and picketing by defendant union had caused the Borden Company to suffer damages, the amount of which is unascertainable.

The court concluded as a matter of law that the injunction sought by the Borden Company should be denied for the reason that its customers whose place of business it sought to enjoin defendant union from picketing, with the exception of the Brazos Ice Company, conducted by Sam Person, had not been made parties to the suit and were not specifically named either in the Borden Company's pleadings or in the evidence on the trial of the suit, and that an injunction, if granted, would be too vague for lack of proper description of the customers which defendant union would be enjoined from picketing in the event the Borden Company's application for an injunction was granted.

The question presented in this appeal has not heretofore been passed on by an appellate court of this state. It involves the right of a court of equity to enjoin a labor organization from picketing the place of business of a retailer with whom the union has no labor dispute nor any other connection or association, by means of placards carried by pickets expressing the union's views upon a situation affecting its members for the admitted purpose of preventing the sale of a product purchased by the retailer from a manufacturer with whom the union has a bona fide labor dispute, but with whom the retailer sustains no other relationship than having been such purchaser of its products.

Appellee Sam Person contends that, since, under the undisputed evidence, defendant union had no labor dispute with him nor any other connection, the picketing of his place of business was part of a plan on the part of defendant union to compel him by coercion to discontinue the sale of a brand of dairy products which his customers wished to buy, and to induce the public to refrain from purchasing such dairy products from him, such acts on the part of defendant union constituted an illegal trust and conspiracy in restraint of trade and a secondary boycott; that such actions are prohibited by both the civil and criminal statutes of this state, and are in direct contravention of both the state and federal constitutions protecting him in the ownership, use and enjoyment of his property and the right to engage in a lawful business in a lawful manner without interference, and that, since the exercise of free speech is no more sacred nor entitled to more protection at the hands of the court than the right of an individual to own, use and enjoy his property, the courts of this state are fully authorized to enjoin such unlawful acts even though they be clothed in the guise of the exercise of the right of free speech.

R.S.Article 5152 provides that it shall be lawful for any and all persons engaged in any kind of work or labor to associate themselves together, and to form trade unions and other organizations for the purpose of protecting themselves in their respective pursuits.

R.S.Article 5153 provides that it shall be lawful for any member of such trade union or other organization to induce or attempt to induce, by peaceful and lawful means, any person to accept any particular employment, or to enter or refuse to enter, or relinquish any employment or pursuit in which such person may be engaged.

R.S.Article 5154 provides that the two preceding articles shall not apply to any combination or association formed for the purpose of limiting the production or consumption of labor's products, or for any other purpose in restraint of trade, and that nothing therein shall be construed to repeal, affect, or diminish the force and effect of, any statute on the subject of trusts, conspiracies against trade, pools, and monopolies.

R.S.Article 4642, Section 1, provides for injunctive relief, "where the applicant is entitled to the relief demanded and such relief or any part thereof requires the restraint of some act prejudicial to him."

R.S.Article 7426 defines a "trust" as:

"A combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or either two or more of them for either, any or all of the following purposes:

"1. To create, or which may tend to create, or carry out restrictions in trade or commerce or aids to commerce or in the preparation of any product for market or transportation, or to create or carry out restrictions in the free pursuit of any business authorized or permitted by laws of this State. * * *"

R.S.Article 7428 provides that:

"Either or any of the following acts shall constitute a conspiracy in restraint of trade. * * * "2. Where any two or more persons, firms, corporations or association of persons, shall agree to boycott or threaten to refuse to buy from or sell to any person, firm, corporation or association of persons for buying from or selling to any other person, firm, corporation or association of persons."

Article 1632 of the Penal Code provides that any attempt to create or carry out restrictions in the free pursuit of any business authorized or permitted by the laws of this state shall constitute a trust.

Article 1634 of the Penal Code provides that where two or more persons, firms, corporations, or association of persons, shall agree to boycott or threaten to refuse to buy from or...