Valley Heating, Cooling & Elec. Co. v. Alabama Gas Corp., 6 Div. 754

• Decision Date: 18 June 1970
• Docket Number: 6 Div. 754
• Citation: 237 So.2d 470,286 Ala. 79
• Parties: , 1970 Trade Cases P 73,236 VALLEY HEATING, COOLING & ELECTRIC CO., Inc., et al. v. ALABAMA GAS CORPORATION, a Corporation.
• Court: Alabama Supreme Court

Page 470

237 So.2d 470

286 Ala. 79, 1970 Trade Cases P 73,236

VALLEY HEATING, COOLING & ELECTRIC CO., Inc., et al. v. ALABAMA GAS CORPORATION, a Corporation.

6 Div. 754.

Supreme Court of Alabama.

June 18, 1970.

Rehearing Denied July 30, 1970.

John W. Cooper, Birmingham, for appellants.

Douglas Arant, Thad G. Long, James P. Alexander, Birmingham, for appellee.

MERRILL, Justice.

This is an appeal from an interlocutory decree denying appellants' 'application for temporary injunction, or injunction pendente lite,' by the circuit court.

Appellants are five dealers who sell and install electric and gas air conditioners, furnaces and other appliances. Their suit was filed under two of our anti-monopoly statutes. Tit. 7, § 124, provides:

'Any person, firm, or corporation injured or damaged by an unlawful trust, combine, or monopoly, or its effect, direct or indirect, may, in each instance of such injury or damage, recover the sum of five hundred dollars and all actual damages from any person, firm, or corporation creating, operating, aiding, or abetting such trust, combine, or monopoly; and may maintain the action therefor against any one or more of the parties to the trust, combine, or monopoly, or their attorneys, officers, or agents, who aid or abet such trust, combine, or monopoly. And all such actions may be prosecuted to final judgment or decree against any one or more of the defendants thereto, notwithstanding there may be a dismissal, acquittal, verdict, judgment, or decree in favor of one or more of the defendants.'

Title 57, § 108, provides:

'Any person or corporation, domestic or foreign, which shall restrain or attempt to restrain the freedom of trade or production, or which shall monopolize or attempt to monopolize the production, control, or sale of any commodity, or the prosecution, management, or control of any kind, class, or description of business; or which shall destroy or attempt to destroy, competition in the manufacture or sale of a commodity, shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than five hundred nor more than two thousand dollars for each offense.'

The bill of complaint requested that appellee be enjoined:

'(a) from paying cash to builders in order to secure the sale and installation of gas equipment and appliances,

'(b) from selling gas equipment and appliances to builders at less than respondent's cost plus a fair margin profit,

'(c) from furnishing gas equipment and appliances at less than cost to the respondent plus a fair margin of profit,

'(d) from subsidizing or affording financial assistance to any person, firm or entity in direct competition to your complainants,

'(e) from performing services on gas equipment and appliances at less than the actual cost of the part, labor and a fair margin of profit '(f) from giving free vacations and advertising to any person, firm or entity in competition with your complainants.'

A hearing was had on September 9, 1969, at which arguments were heard and the cause was submitted by complainants on the verified bill and affidavits and by respondent on demurrer, verified answer, amendment to demurrer and affidavits. The decree denying the temporary injunction was entered September 18, 1969.

Appellants' first assignment of error is that the decree 'is contrary to the law in the case,' and assignment of error three is that the decree 'is contrary to the law and the facts in the case.' Assignment 2 charges that the 'order of the court * * * is contrary to the admitted facts in the case.'

These assignments of error are the same as assignments 1, 2 and 3 in Smith v. McCain Boiler and Engineering Co., Inc., 284 Ala. 618, 227 So.2d 131, except that assignment 2 there used the term 'contrary to the evidence in the case' and here it was 'contrary to the admitted facts in the case.' There is no material difference in the two expressions when applied to assignments of error because both generally describe the evidence in the case. In the Smith case, supra, also in equity, we held that assignments of error of this type are 'without merit and present(s) nothing for review.' Other equity cases so holding are Vickers v. Vickers, 273 Ala. 645, 144 So.2d 8, and Thompson v. State, 267 Ala. 22, 99 So.2d 198; Taggart v. Weinacker's, Inc., 283 Ala. 171, 214 So.2d 913.

Assignment of error 4 is not argued in brief and is thereby waived. Supreme Court Rule 9; Russell v. Crenshaw, 283 Ala. 59, 214 So.2d 333.

Assignment 5 charges that the court erred in denying the application for temporary injunction. We have approved a like assignment of error. Taggart v. Weinacker's, Inc., 283 Ala. 171, 214 So.2d 913.

The following principles are applicable when we review a trial court's decree denying a temporary injunction:

1. Each case for injunctive relief must be considered in the light of the rule that an injunction, whether permanent or temporary, cannot, as a general rule, be sought as a matter of right, but the power to grant or refuse it rests in the sound discretion of the trial court, under the facts and circumstances of the particular case. Corte v. State, 259 Ala. 536, 67 So.2d 782.

2. An abuse of this discretion has been defined, in a legal sense, as exceeding the bounds of reason, all the circumstances before the lower court being considered. Clayton v. State, 31 Ala.App. 106, 13 So.2d 411.

3. To establish abuse of discretion, it is essential to show that the...