Broome v. Hattiesburg Bldg. and Trades Council

• Decision Date: 13 November 1967
• Docket Number: No. 44592,44592
• Parties: J. D. BROOME et al. v. HATTIESBURG BUILDING AND TRADES COUNCIL et al.
• Court: Mississippi Supreme Court

Page 184

206 So.2d 184

J. D. BROOME et al. v. HATTIESBURG BUILDING AND TRADES COUNCIL et al.

No. 44592.

Supreme Court of Mississippi.

Nov. 13, 1967.

Suggestion of Error Overruled Jan. 29, 1968.

Heidelberg, Sutherland & McKenzie, Hattiesburg, for appellants.

Evans & Sykes, Walker & Graham, Gulfport, for appellees.

INZER, Justice.

This is an appeal by J. D. Broome, doing business as Broome Constructing and Maintenance Company, et al., from a decree of the Chancery Court of Forrest County awarding appellees, Hattiesburg Building and Trades Council, et al. $6,572.72 for damage resulting from the wrongful issuance of an injunction restraining appellees from picketing.

This is the second appearance of this case before this Court. On former appeal we affirmed a decree of the Chancery Court making permanent a preliminary injunction restraining Hattiesburg Building and Trades Council and local unions from picketing the job site of appellant. This decision is reported in 247 Miss. 458, 153 So.2d 695. Thereafter the appellee labor union filed a petition for a writ of certiorari in the United States Supreme Court. The writ was granted and the decision of this Court was reversed by the United States Supreme Court on April 27, 1964, and is reported in 377 U.S. 126, 84 S.Ct. 1156, 12 L.Ed.2d 172. The Supreme Court held that since the union's activities were arguably unfair labor practices, 'the state court had no jurisdiction to issue the injunction.' Upon remand to this Court we remanded the case to the chancery court for appropriate action. The unions filed a suggestion of damages as result of the wrongful suing out of the injunction. Proper notice was given. Broome answered and denied that the unions were entitled to any damages upon dissolution of the injunction. The basis of Broome's argument was that the chancery court found, and this Court affirmed, that the union was engaged in an unlawful conspiracy to force him to enter into a contract to make Hattiesburg Trades Council his exclusive hiring agency, and to force him to agree, in violation of the Right to Work provision of the State Constitution, that he would employ only union laborers. The trial court held that the dissolution of the injunction carried with it the finding that the unions were wrongfully enjoined and entitled to damages. The trial court found from the evidence that the unions were entitled to recover damages in the total sum of $6,572.72, of which five thousand dollars was for their attorney's fee, the balance being court costs and out-of-pocket expenses. A decree was entered to this effect, hence this appeal.

The principal question involved on this appeal is whether appellees were entitled to recover damages on the dissolution of the injunction even though it was issued as a result of the wrongful acts of appellees, and if so, could the extent of the recovery exceed the amount of the injunction bond.

We are of the opinion that the question relative to recovery of damages is controlled by the decision of this Court in Johnson v. Howard, 167 Miss. 475, 141 So. 573 (1932), where Howard and others were enjoined from violating the primary election laws of this state. The injunction was dissolved for want of jurisdiction. Johnson contended that there was no liability on the injunction bond. He stated his position as follows:

The appellees had no vested right to do that which they were restrained from doing. Upon the other hand, they were enjoined from violating the law, therefore, cannot recover damages. The appellees were not damaged, in that they were only restrained from proceeding in an unlawful manner complained of in the original bill of complaint, and upon the issuance of the injunction, changed their procedure to conform to the requirements of the statute pointed out in the original bill of complaint; and in that the injunction was nullity ab initio. (167 Miss. at 86, 141 So. at 574)

The appellants here state their position in the following language, 'no recovery can be allowed on the injunction bond because defendant's illegal conspiracy was the underlying basis for the entire litigation.' In support of this basic contention, it is said that 'the law will not permit a person to take advantage of his own unlawful action and the courts will not grant relief on an illegal contract where the parties are in pari delicto.' It is apparent that the basic contention here is the same as that in the Johnson case, where this Court, speaking through Justice Anderson, said:

As we understand the decisions of our court this question has long since been determined against the appellants' contention. 'The dismissal of a bill whether by the court or by the complainant operates as a dissolution of any injunction issued thereunder and establishes the fact that it was wrongfully sued out, and that the defendant is entitled to recover whatever damages he sustained by the issuing of same.' Griffith's Chancery Practice, § 463. We think the principle laid down by the author of that work is fully justified by the decisions of our court. Yale v. Baum, 70 Miss. 225, 11 So. 879; Somerville v. Mayers, 54 Miss. 31; Alexander v. Woods, 115 Miss. 164, 75 So. 772; Marshall v. Minter, 43 Miss. 666; Harrison v. Balfour, 5 Smedes & M. 301. (Emphasis in original) 167 Miss. at 487, 141 So. at 574.

The Court also quoted with approval the following statement from Corpus Juris:

32 C.J., p. 452, § 782, states the principle in this language: 'In an action on an injunction bond to recover the damages provided for thereby, the decision of the court dissolving the injunction that the same was improperly granted is conclusive of that fact, in the absence of fraud and collusion, and defendant in the action on the bond is not at liberty to go behind the judgment and litigate the question of the right to the injunction.' 167 Miss. at 489, 141 So. at 575. (Emphasis in original)

Broome also urges that the parties involved here are in pari delicto and that our decision in Lowenburg v. Klein, 125 Miss. 284, 87 So. 653, should control. This contention was also made in Johnson. We do not think it necessary to say more than what was said in Johnson relative to this contention:

Appellants contend that Lowenburg v. Klein, 125 Miss. 284, 87 So. 653, is in point in their favor. We do not think it is. It was held in that case that, when an action is based on a contract made in violation of the criminal laws of the state, and the parties to the action are in pari delicto, the courts will not entertain a suit for relief of either against the other, but will leave them as they are found; and, in an injunction suit based upon such a contract, attorney's fees should not be allowed to the defendant upon the dissolution of the injunction. The question involved in that case is a very different one from that here involved. The contract in that case was made in violation of both the criminal laws of the federal and the state governments, and both parties to the contract were equally in the wrong. It is an elementary principle that in such a case the whole subject-matter of the litigation is outlawed, the courts refuse to deal with it at the instance of either party, they wash their hands of the whole matter. It is apparent at once that the present case is entirely outside of any such principle as that. There are some authorities from other states cited in appellants' brief that seem to sustain their position, but we think, and have undertaken to show, that the better reasoning is to the contrary. 167 Miss. at 491, 141 So. at 576.

The Court also discussed the question of whether, when an injunction is dismissed for want of jurisdiction, damages could be awarded:

The result is the same where the injunction proceeding is void for want of jurisdiction of the court to entertain it. Where a complainant has secured an injunction and stayed his adversary's proceedings, and thereby caused him to suffer damages, it is too late for the complainant to set up as a defense in an action on the injunction bond a want of jurisdiction in the court to grant the injunction. He is estopped to say that the court granted the injunction without jurisdiction. It does not lie in the mouth of one who has affirmed the jurisdiction of a court to grant an...