Moore v. Polk Sanitary Milk Co.
| Decision Date | 03 March 1936 |
| Docket Number | 26312 |
| Citation | 200 N.E. 228,209 Ind. 558 |
| Parties | MOORE et al. v. POLK SANITARY MILK CO. et al |
| Court | Indiana Supreme Court |
Appeal from Superior Court, Marion County; Russell J. Ryan, judge.
1. INJUNCTION---Violation and Punishment---Trial---Evidence---Sufficiency.---In trial of partners in milk delivery business, charged with indirect civil contempt in aiding and abetting another to violate an injunction order restraining him from selling milk to customers of a competitor milk company within a designated territory, evidence held insufficient to sustain conviction p. 568.
2. INJUNCTION---Violation and Punishment---Indirect Civil Contempt---Limited to Actual Damages.---In indirect civil contempt proceeding for violation of an injunction order, the amount of the fine assessed should be fixed upon a compensatory basis and not arbitrarily fixed by the court. p. 570.
3. CONTEMPT---Civil Contempt---Violation of Injunction---Punishment.---Where information for indirect civil contempt in violating an injunction order failed to allege any damages suffered by the informant, and no damages were shown, a fine of $400.00 assessed was arbitrary and therefore erroneous. p. 570.
The Polk Sanitary Milk Company filed an information charging Russell Moore and another with aiding and abetting another to violate an injunction order. From a judgment of conviction and assessing a fine, defendants appealed. Reversed.
Appeal from Superior Court, Marion County; Russell J. Ryan, judge.
Collins & Lewis, A. J. Rucker, David M. Lewis and B. Howard Caughran all of Indianapolis, for appellants.
Henry M. Dowling and Walter Pritchard, both of Indianapolis, for appellees.
This is an appeal by Russell Moore and Earl Marple, from a judgment of the superior court, adjudging them guilty of indirect civil contempt, upon an information filed by the appellee the Polk Sanitary Milk Company.
On August 31, 1932, the Polk Sanitary Milk Company filed a suit in the superior court asking for an injunction against one Frank Dowden, and on September 2, 1932, the court issued a temporary restraining order against him.
On October 11, 1932, a permanent injunction was entered by agreement of the parties.
On December 23, 1932, the Polk Sanitary Milk Company filed the information herein against appellants, and upon a hearing the court found appellants guilty of the acts charged and fined each appellant the sum of $ 200, and cost, and provided in the judgment that the fine should inure to the benefit of the Polk Sanitary Milk Company.
Appellants filed their motion for a new trial and their motion to modify the judgment. Each motion was overruled, and appellants appealed.
Appellants assign as error: (1) The overruling of their motion for a new trial; (2) the overruling of their motion to modify the judgment; (3 & 4) the court did not have jurisdiction of the persons of appellants; (5) the court did not have jurisdiction of the subject-matter; (6) that the judgment is null and void because not made and entered by a judge of the court in the cause and proceeding; and (7) the purported judgment and decision below made and rendered by the Honorable Russell J. Ryan as purported special judge in the cause on January 11, 1933, against these appellants as and for contempt in violating final decree of permanent injunction rendered on November 11, 1932, by the court in the cause, is and was at all times null and void, the said Honorable Russell J. Ryan having been selected and appointed on September 30, 1932, as special judge only for the trial resulting in said final decree of permanent injunction, with all his power and authority as such special judge at an end at all times after November 11, 1932.
Appellants, perhaps for the purpose of a background, and in order that the present appeal might be better understood, have incorporated in their brief and also in the transcript the record and evidence in other proceedings including the complaint of the Polk Sanitary Milk Company against Frank Dowden, the information filed against said Dowden for contempt, and the judgment against Frank Dowden and Kaleb Johnson, the evidence given at said hearing.
It appears from the record of these proceedings, not the proceeding involved in this appeal, that on July 30, 1932, one Frank Dowden entered into a written contract of employment as a milk deliveryman on route No. 2, with the Polk Sanitary Milk Company; that said contract provided, among other things: 'That at no time during the term of said employment, or for a period of nine (9) months immediately following the termination of his employment by the said party of the first part or upon his quitting his service, will he for himself or on behalf of any other person, persons, company or corporation, deliver or sell any dairy products to any customer or agent of said party of the first part canvassed or supplied by him along any route at any time during his employment hereunder, nor will he, in any way directly or indirectly for himself, or in behalf or, in conjunction with any other person, persons, company or corporation, solicit, divert or take away, or attempt to solicit, divert or take away any of such customers or the business or patronage of any such customer of said party of the first part during the aforesaid time * * * and that he will not disclose or divulge, directly or indirectly to any other person, persons, company or corporation the names or addresses of said customers * * *.'
On September 2, 1932, the Polk Sanitary Milk Company filed a suit for an injunction against Frank Dowden and alleged therein, among other things, that on August 28, 1932, said Dowden terminated his employment, and in violation of the above provisions of his contract 'is now engaged in soliciting, diverting and taking away the customers of the plaintiff along the route known as route 2 * * *; that among the patrons of the plaintiff whom he has solicited are, Louis A. Herald, 819 Christian Place, F. A. Cain, 41 Delaware Court, Wm. H. Evans, 234 N. Alabama Street, Mrs. Elenor Immes, 1215 N. Alabama Street, E. Duncan, Seminole Hotel, W. S. Cummings, 1964 N. Alabama Street.' A copy of the agreement between the parties was filed with the complaint.
The plaintiff in that suit filed an undertaking, and the court issued a temporary restraining order against the defendant and fixed the date for hearing on the injunction on September 10, in superior court room 1. Upon a motion and affidavit for a change of venue the cause was venued to room 5, superior court of Marion county. On November 11, 1932, the court found that a temporary injunction should be granted and upon agreement of the parties the temporary injunction was made permanent. The injunction restrained Frank Dowden, for a period of nine months immediately following August 28, 1932, 'for himself or on behalf of any other person, persons, company or corporation, from delivering or selling any dairy products to any customer or agent of the Polk Sanitary Milk Company, or from, in any way, directly or indirectly, for himself or on behalf of any other person, persons, company, or corporation, or in conjunction with them soliciting, diverting, or taking away or attempting to solicit, divert or take away any of the customers or the business or patronage of any of the customers of the said Polk Sanitary Milk Company along or within the boundaries of the route bounded and described as follows: -- On the South by St. Clair street; On the North by East 16th street; On the East by Park Ave; On the West by Pennsylvania street, all in the City of Indianapolis, Marion County Indiana.'
On December 14, 1932, the plaintiff filed its affidavit for citation of defendant Frank Dowden to show cause, if any he had, why he should not be punished as and for contempt for violation of the injunction heretofore rendered. This affidavit charged that Frank Dowden, after the injunction was issued, 'did continue to deliver dairy products to customers of the plaintiff, along the route known as route two, and indirectly and in conjunction with one Kaleb Johnson.' The affidavit set out the names and addresses of six persons to whom the affiant said the defendant delivered dairy products. The court ordered notice to defendant Dowden to appear on December 17, 1932, and show cause why he should not be punished for contempt of court for violating the order of the court heretofore set out. Dowden's hearing was had on Saturday, the 17th of December, and after hearing Dowden, the court said he wanted to hear Johnson and ordered him to appear on Tuesday, the 20th. After hearing Johnson the court decreed that Dowden and Johnson should each serve seven days in the Marion county jail for contempt of court and that they pay the cost. There was no appeal from this judgment. The above proceeding seems to be the history back of and preceding the institution of the case before us on this appeal.
On December 23, 1932, three days after the court sentenced Frank Dowden and Kaleb Johnson to jail for indirect criminal contempt of court, the Polk Sanitary Milk Company filed an affidavit and information in the same cause and with the same court and judge charging the appellants herein with a violation of the injunction theretofore issued against Frank Dowden. This information related the issuance of the permanent injunction against Frank Dowden on November 11 1932, and enumerated the things which the court had enjoined the said Frank Dowden from doing. It also related the violation of the injunction by Dowden and one Kaleb Johnson and that the evidence produced at the hearing established the violation as charged, and that the defendant (Frank Dowden) was duly warned by the court that further violations of said...
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