Nashville Ry. & Light Co. v. Lawson

• Citation: 229 S.W. 741,144 Tenn. 78
• Parties: NASHVILLE RY. & LIGHT CO. v. LAWSON.
• Decision Date: 15 January 1921
• Court: Supreme Court of Tennessee

229 S.W. 741

144 Tenn. 78

NASHVILLE RY. & LIGHT CO. v. LAWSON.

Supreme Court of Tennessee.

January 15, 1921

Certiorari to Court of Civil Appeals.

Suit by the Nashville Railway & Light Company against J. B. Lawson. A decree denying defendant's motion to dissolve the injunction on the bill and answer, but dissolving it on another ground and dismissing the suit, was affirmed in part and reversed in part by the Court of Civil Appeals, and defendant brings certiorari. Affirmed.

J. M Anderson and F. M. Bass, both of Nashville, for plaintiff.

Pitts & McConnico and M. S. Ross, all of Nashville, for Lawson.

HALL J.

The bill in this cause was filed in the chancery court of Davidson county, by the complainant, a public service corporation, having its situs in the city of Nashville Tenn., and operating an electric railway system and an electric light and power plant in said city and suburban territory, serving many hundreds of people, against the defendant, J. B. Lawson, individually, and as the agent and representative of the Amalgamated Association Street & Electric Railway Employees of America, an unincorporated street car labor union, with its headquarters located in Detroit, Mich., for the purpose of enjoining the said Lawson both individually, and as representative of said association his agents, etc., and all those in conspiracy and confederation with him, from undertaking to persuade the complainant's motormen and conductors to join the street car labor union, which the bill alleged said Lawson was then in Nashville for the purpose of organizing.

The bill further alleged that complainant had entered into separate written contracts with each of its motormen and conductors, for a period of two years from the date of their execution, which provides, among other things, as follows:

"3. Said employee further agrees as follows:

'(a) That at this time he is not a member of any street car or other labor union, and he agrees that during the term of his service he will not join any such union.' "

It was further provided in said contracts that complainant, without just legal cause, would not dismiss any of its motormen or conductors until it gave such motorman or conductor two weeks' notice thereof in writing, and said motormen and conductors, upon their part, agreed not to quit the employment of the complainant except after two weeks' notice of their intention so to do given in writing to the complainant.

The bill further alleged, as an affirmative fact, that, at the time of its filing, the defendant Lawson was actually engaged in an effort to so organize the motormen and conductors of the complainant; that in the effort to carry out his purpose the defendant had held interviews with certain of complainant's motormen and conductors; had endeavored to induce them to breach their contracts of employment with complainant by joining, or agreeing to join, said subordinate labor union, which he was endeavoring to organize; that he had an engagement on the night of the day on which the bill was filed to meet still other of complainant's conductors and motormen for the purpose of inducing them to breach their contracts of employment by agreeing to join said labor union; that the defendant had promised and agreed that as soon as a sufficient number of motormen and conductors agreed to join said union, he would procure a charter for said local union from said superior association, and that he would organize complainant's employees into a local union under said charter.

The bill was sworn to by B. C. Edger, general superintendent of the complainant, it being stated in the affidavit "that the matters and things stated in the bill are true to the best of his knowledge, information and belief."

An injunction was issued in accordance with the prayer of the bill upon the fiat of the chancellor.

The defendant answered the bill. The answer admitted the execution of the written contracts with complainant by its motormen and conductors; admitted that the defendant was a nonresident at the time the bill was filed. but was temporarily in Davidson county at said time; that he was a member of the General Executive Board of the Amalgamated Association Street & Electric Railway Employees of America; admitted that he, at the invitation of a number of the employees of the complainant, came to Nashville on April 20, 1918, for the purpose of explaining to those employees and such others as might desire such information, both individually and collectively, the advantages and obligations that would result to them should they see fit to form a local organization in Nashville; that it was his purpose to present to said employees, in a decent and orderly manner, the aims, aspiration, and advantages of organized labor having to do with the welfare of street railway employees, with a view of having them decide, each man for himself, whether he would then, or at any future time, make application for membership in such organization.

The answer denied that it was defendant's purpose to, or that he was undertaking to persuade or induce any of the employees of the complainant to, violate their contracts with complainant, but the answer averred that it was defendant's purpose to advise the keeping of such contracts, and stated that it was his purpose, in a decent, orderly, and lawful manner, to explain the benefits and advantages of organized labor.

The answer was sworn to by the defendant, the affidavit stating that--

"All matters and things therein stated are true as of his knowledge except where the text of the answer may show that the averment is made upon information and belief, in which event the defendant makes oath that he believes such matters and things to be true."

Later the defendant amended his answer by averring that complainant had entered into new contracts with its motormen and conductors on June 8 and 9, 1918, and that said new contracts contained a provision identical with the provision in the old contracts as to membership in or joining any labor union while in the service of complainant, and it was averred that said contracts were contrary to public policy and void.

The cause was heard upon the motion of the defendant to dissolve the injunction upon the bill and answer, and to modify the injunction. The chancellor refused to dissolve the injunction upon the bill and answer, but did modify said injunction in so far as it enjoined the defendant Lawson from "presenting in an orderly and peaceable manner to said employees, or any of them, the object and purposes of organized labor, and the advantages and benefits thereof."

The complainant excepted to this modification of the injunction. After thus disposing of the motion to dissolve the injunction upon the bill and answer, the court dissolved the injunction in its entirety upon the ground that the contracts, which complainant had with its motormen and conductors hereinbefore set out, were void because in contravention of the business policy of the government, and for that reason the bill could not be sustained, and it was dismissed, at complainant's cost.

From this latter decree complainant appealed to the Court of Civil Appeals, and assigned errors.

The defendant filed the record for writ of error, and assigned the action of the chancellor overruling his motion to dissolve the injunction upon the bill and answer for error.

The Court of Civil Appeals overruled the defendant's assignment of error, and affirmed the chancellor's decree refusing to dissolve the injunction upon the bill and answer. It sustained complainant's assignments of error, and reversed the decree of the chancellor, in so far as it adjudged that complainant's contracts with its employees were contrary to public policy and void, and dismissed its bill, and remanded the cause to the chancery court for further proceedings.

The defendant Lawson has filed his petition for writ of certiorari, and the cause is now before this court for review upon three assignments of error, which in reality raise but two questions:

First. That the Court of Civil Appeals erred in not sustaining the defendant's assignment of error to the effect that the chancellor erred in denying his motion to dissolve the temporary injunction on the bill and answer without dismissing the bill.

Second. That the Court of Civil Appeals erred in sustaining the complainant's assignment of error filed in that court, to the effect that the chancellor erred in adjudging that the provisions contained in the contracts of complainant with its employees, by which they obligated themselves not to join any labor union during the term of said contracts, were contrary to public policy and void, and in remanding the cause to the chancery court of Davidson county for further proceedings.

We will discuss these questions in the order in which they are presented in the petition, assignments of error, and brief accompanying same.

It is insisted that the injunction should have been dissolved upon the bill and answer, because the bill is sworn to on knowledge, information, and belief, while the averments and denials of the answer, which are positive and direct, are sworn to as of the defendant's own knowledge, and therefore fully met and overcame the allegations of the bill.

The general rule is well settled under our practice that an injunction bill, sworn to on information and belief, is inadequate to withstand a motion to dissolve an injunction when the answer is sworn to positively and directly on the personal knowledge of the defendant, but it is just as well settled that a bill sworn to on knowledge, information, and belief, where it affirmatively appears from the face of the bill what allegations are based on knowledge, and what on information and...