Texas Foundries v. International Moulders & Foundry Workers' Union, A-3304

• Court: Supreme Court of Texas
• Writing for the Court: HICKMAN
• Citation: 248 S.W.2d 460,151 Tex. 239
• Parties: TEXAS FOUNDRIES, Inc. v. INTERNATIONAL MOULDERS & FOUNDRY WORKERS' UNION et al. *
• Docket Number: No. A-3304,A-3304
• Decision Date: 09 April 1952

Page 460

248 S.W.2d 460

151 Tex. 239

TEXAS FOUNDRIES, Inc. v. INTERNATIONAL MOULDERS & FOUNDRY WORKERS' UNION et al.

^*

No. A-3304.

Supreme Court of Texas.

April 9, 1952.

Rehearing Denied May 21, 1952.

Rawlings, Sayers, Scurlock & Daly, Fort Worth, Collins, Garrison, Renfrow & Zeleskey and Peavy & Shands, all of Lufkin, Looney, Clark & Moorhead, Austin, for petitioner.

Mullinax, Wells & Ball, Dallas, for respondents.

HICKMAN, Chief Justice.

In a suit by petitioner, Texas Foundries, Inc., for damages and for a permanent injunction against picketing, and, pending the trial of the case on its merits, for a temporary injunction, the trial court issued a temporary injunction against the respondent labor union and thirty-eight individual members thereof, enjoining them from all picketing until the case could be heard on its merits. The Court of Civil Appeals modified the injunction so as to free respondents from some of its restraints and to permit further picketing. 241 S.W.2d 213.

All that is before us is a temporary injunction. Questions of law which go to a decision of the case on its merits on final hearing will not be discussed. In our view the case may be determined from a consideration of but two questions. First. Should the writ of error be dismissed as moot? Second. If not, does the record disclose a clear abuse of discretion by the trial judge in granting the temporary injunction?

Respondents make known to the court that they are not now engaged in picketing petitioner's plant; that on or prior to September 4, 1951, they terminated their strike and picketing activities and have not picketed since that date; that several of them have been re-employed and are now working for petitioner, and all other individual respondents who were on strike have made application to petitioner for reinstatement; that the striking and picketing have been voluntarily abandoned; and that no further picketing is threatened. Wherefore, they pray that the application of writ of error be dismissed as moot.

The motion is not to dismiss the whole proceeding for a temporary injunction nor even to dismiss the appeal which respondents themselves prosecuted from the trial court's judgment, but is to dismiss the writ of error. To grant the motion would leave in effect the judgment of the Court of Civil Appeals in which respondents obtained relief and would deny to petitioner the right to have that judgment reviewed. The rule has long been established in this court that when a case becomes moot on appeal, all previous orders are set aside by the appellate court and the case is dismissed. To dismiss the appeal only would have the effect of affirming the judgment of the lower court without considering any assignments of error thereto. McWhorter v. Northcutt, 94 Tex. 86, 58 S.W. 720; Danciger Oil & Refining Co. v. Railroad Commission, 122 Tex. 243, 56 S.W.2d 1075; Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863.

When the appeal is from an order granting a temporary injunction, and that phase of the case becomes moot on appeal, the same rule applies. The proper order is to set aside all orders pertaining to the temporary injunction and dismiss that portion of the case, leaving the main case still pending. International Ass'n of Machinists Local Union No. 1488 v. Federated Ass'n of Accessory Workers, 133 Tex. 624, 130 S.W.2d 282; Service Finance Corp. v. Grote, 133 Tex. 606, 131 S.W.2d 93; West v. Culpepper, 135 Tex. 156, 140 S.W.2d 166. The converse of the above rule is true. If the record would not warrant us in setting aside the orders of both courts below, then the case is not moot. Obviously, under this record, we would not be authorized to enter that order and respondents do not suggest that we could or should do so. The motion is to dismiss the writ of error only. That motion is overruled.

We do not base our order overruling the motion in any degree upon the fear that respondents are acting in bad faith. We accept their statement that the strike has been settled and further picketing is not threatened. That being the situation, it is clear that, except in the matter of court costs, no practical benefit would flow to respondents by our leaving undisturbed the judgment of the Court of Civil Appeals granting them the right to picket. And for the same reason they would not be materially prejudiced by an affirmance of the trial court's judgment. Neither judgment would be res judicata on the trial of the case on its merits. Very different questions will be up for decision when and if the court comes to decide what character of permanent injunction, if any, should be issued. On that hearing what has been done in this proceeding will be ignored.

In considering whether the Court of Civil Appeals was correct in its decision that the temporary injunction issued by the trial court against all picketing pending a trial of the case on its merits should be modified, we are guided by well-established rules. The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion. Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235; Southwestern Greyhound Lines, Inc., v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235; Harris County v. Bassett, Tex.Civ.App., 139 S.W.2d 180, error refused; Scanlan v. Houston Lighting & Power Co., Tex.Civ.App., 62 S.W.2d 537, error refused; Borden Company v. Local 133 of International Brotherhood of Teamsters, etc., Tex.Civ.App., 152 S.W.2d 828, error refused; International Ladies Garment Workers Local No. 123 v. Dorothy Frocks Co., Tex.Civ.App., 95 S.W.2d 1346; 24 Tex.Jur., Injunctions, § 253.

The test announced by this court is: 'If the petition does allege a cause of action and evidence tending to sustain such cause of action is introduced, then there is no abuse of discretion by the trial court in issuing the temporary injunction. (128 Tex. 560, 99 S.W.2d 270.)' Southwestern Greyhound Lines, Inc., v. Railroad Commission, supra. This case meets that test.

The opinion of the Court of Civil Appeals states:

'The evidence supports the findings of the trial court * * * that during the period of time that the picketing was in progress, some 31 incidents found by the trial court under its fact finding No. 12 did occur. From these findings and the evidence supporting them it is evident that the members of the appellant union and those acting with them followed different workmen on their way home from work and after first requesting them not to cross the picket lines, made vague and indefinite threats of violence to them. In particular, the Negro workers were told that it would be dangerous...