Webb v. Cooks', Waiters' & Waitresses' Union, No. 748

• Decision Date: 20 April 1918
• Docket Number: (No. 8986.)
• Citation: 205 S.W. 465
• Parties: WEBB v. COOKS', WAITERS' & WAITRESSES' UNION, No. 748, et al.
• Court: Texas Court of Appeals

205 S.W. 465

WEBB v. COOKS', WAITERS' & WAITRESSES' UNION, No. 748, et al.

(No. 8986.)

Court of Civil Appeals of Texas. Ft. Worth.

April 20, 1918.

Rehearing Denied June 22, 1918.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Suit by G. R. Webb against the Cooks', Waiters' & Waitresses' Union, No. 748, and others. From a judgment for defendants, plaintiff appeals. Reversed and rendered.

Chas. T. Rowland and Marvin H. Brown, both of Ft. Worth, for appellant. Dee Estes, Capps, Cantey, Hanger & Short, and David B. Trammell, all of Ft. Worth, for appellees.

CONNER, C. J.

This appeal is from a judgment denying injunctive relief sought by appellant against the Cooks', Waiters' & Waitresses' Union, Local No. 748, of the city of Ft. Worth, and the officers and members of said union. In substance it was alleged that said officers and members of said union had conspired together to intimidate, coerce, and harass the plaintiff and injure his business, which was that of a restaurant or café owner, and to that end had caused his place of business to be "picketed," etc., to his great and irreparable injury, etc.

The case is the first of its kind, so far as we are advised, that has reached an appellate tribunal of Texas, but so much has been written by courts in other jurisdictions on the subject herein involved that it almost seems superfluous to do more than to declare our conclusion with a citation of numerous cases where the subject of a labor union's attempt to boycott and picket has been treated. But because of the importance of the subject, and of the earnestness with which this cause has been presented, and because we think we have statutes relating to the questions involved, it will perhaps be our duty to set forth our conclusions, at least briefly.

To be as brief as possible, then, we will further state that a hearing was had by the court upon the evidence and the injunction denied under the facts. We therefore deem it immaterial to discuss at length the court's rulings upon the demurrers to the plaintiff's petition. We content ourselves on this branch of the appeal with the simple statement that in our judgment the facts as alleged by the plaintiff below and the appellant here were sufficient to entitle the plaintiff to an injunction as prayed for.

But are the facts sufficient? After a careful consideration of the evidence and of the authorities we think they are. Briefly stated, the undisputed evidence is to the effect that after a visit by Mr. Childs, business agent, sometimes designated as the "walking delegate," of the union, and Mr. Webb's refusal to "unionize" his place of business by signing a contract to employ none but members of the union or those affiliated therewith, at the scale of prices for prescribed hours per week, etc., the union in open meeting, upon Mr. Childs' report, agreed to and ordered the "picketing" of Mr. Webb's place. Pickets from among the members were appointed by Mr. Childs and regularly paid by the authorized officers of the union. The picketing had continued about two weeks prior to the trial, and consisted of the pickets, two or more at a time, walking back and forward in front of plaintiff's restaurant and handing out to passers-by cards upon which were printed the words:

"This café is unfair to organized labor. Cooks', Waiters' & Waitresses' Union, Local No. 748."

Appellant testified that he had seen as many as six people standing in front of his place of business handing these cards out, usually, however, but two, the number designated by the union, and heard such remarks by the pickets as:

"Please don't go into that café!" "We are working for organized labor!" "We will win!"

The officers of the union, however, testified that the instructions to the pickets were to merely hand out the cards without remarks, and the pickets who testified denied making remarks. Appellant also testified without contradiction that the wages paid by him exceeded those prescribed by the union, and the evidence discloses no complaint as to the qualification or character of appellant's employés or of the hours of service required of them. Appellant further testified without contradiction that as a result of the picketing his daily receipts fell off from $10 to $15 per day, that he was 46 years old, a native of Georgia, and that it was not a pleasant thing personally to be "picketed against." In describing its effect upon him, appellant used the following words:

"If I said what I think of it personally, whenever I see a man out in front of my place of business trying to keep me from making a living for my wife and family, I feel just like I ought to take a gun and kill him."

There was also testimony showing the insolvency of the defendants, and other testimony that will be noticed further on in the course of our opinion, but for the present we think the foregoing outline of the facts will present a sufficient view of the case.

We as a people are exceedingly sensitive to influences of the kind indicated. We have adopted as a slogan the saying, "Vox populi, vox Dei." The voice of the people determine the tenure and rewards of the officeholder and who shall hold the offices. The influence of such voice enters into all of our laws, and it is therefore particularly true of us that the officeholder, the candidate for office, those engaged in business, and those of the general public to whom participation in a heated controversy of any kind is distasteful and repugnant, are all influenced in varying degrees by efforts, vocal or otherwise, of a labor organization with which other labor organizations are affiliated. The evidence shows without dispute that in the city of Ft. Worth there are numerous labor organizations with a large membership which have headquarters in which is designated in the evidence as "Labor Temple," where the defendant union has its headquarters.

It therefore seems idle to say under circumstances as indicated that the acts complained of and shown are not provocative of violence and bloodshed, and do not amount to intimidation and coercion. We at least cannot hide nor obscure the truth with the specious contention urged herein that no open threats or violence was proven. We must know what has frequently been declared in adjudicated cases, that restraint of the mind is just as potent as a threat of physical violence. See Barr v. Essex Trades Council, 53 N. J. Eq. 111, 30 Atl. 881; Purvis v. Local No. 500, U. B. C. & J., 214 Pa. 348, 63 Atl. 585, 12 L. R. A. (N. S.) 642, 112 Am. St. Rep. 757.

In Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421, it was held:

"That the boycotting of one who refuses to accede to the demands of the union is unlawful, where the means used to prevent persons from dealing with the person boycotted are threatening in their nature, and tend naturally to overcome, by fear of loss of property, the will of others, and compel them to do what they would not otherwise do," although such means are "unaccompanied by actual violence or threats of violence."

The courts of the country generally with but few exceptions have expressed like views. See Cœur D'Alene Consol. Min. Co. v. Miners' Union (C. C.) 19 L. R. A. 382, 51 Fed. 260; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. (C. C.) 54 Fed. 730, 19 L. R. A. 387; United States v. Weber (C. C.) 114 Fed. 950; Seattle Brewing & Malting Co. v. Hensen (C. C.) 144 Fed. 1011; My Maryland Lodge, No. 186, v. Adt, 100 Md. 238, 59 Atl. 721, 68 L. R. A. 752; Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443; Plant v. Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 30; Berry v. Donovan, 188 Mass. 353, 74 N. E. 603, 5 L. R. A. (N. S.) 899, 108 Am. St. Rep. 499, 3 Ann. Cas. 738; Erdman v. Mitchell, 207 Pa. 79, 56 Atl. 327, 63 L. R. A. 534, 99 Am. St. Rep. 783; Purvis v. Local No. 500, U. B. C. & J., 214 Pa. 348, 63 Atl. 585, 12 L. R. A. (N. S.) 642, 112 Am. St. Rep. 757; State v. Stewart, 59 Vt. 273, 9 Atl. 559, 59 Am. Rep. 710; Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607, 43 L. R. A. 803, 76 Am. St. Rep. 746; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S. W. 997, 22 L. R. A. (N. S.) 607, 128 Am. St. Rep. 492.

Appellees insist, in effect, that inasmuch as a single individual may under constitutional guaranty freely speak or write as he pleases without injunctive restraint, an association or combination of persons may lawfully do likewise, and hence that the defendants committed no wrong. It is, of course, apparent from the proof in this case that the pickets were not merely expressing their individual views and wishes. On the contrary, they were giving voice to the concerted will and desire of a powerful organization. The difference in the two things is quite distinct, both in character and force. The following quotation from the opinion in American Fed. of Labor v. Buck's Stove & Range Co., reported in 33 App. D. C. 83, 32 L. R. A. (N. S.) 749, will illustrate the difference mentioned and indicates our view, viz.:

"The contention is put forward that, inasmuch as each member of the federation has the right to bestow his trade where he will, according to his whim or fancy, it cannot be unlawful for a combination of members to do what each, acting separately, may do, and that therefore the combination may lawfully discontinue or threaten to discontinue business intercourse with a given firm and all who handle its product; or, to state the proposition bluntly, that the boycott, as previously defined, is lawful. To admit the soundness of this contention is to give legal support and standing to an engine of harm and oppression utterly at variance with the spirit and theory of our institutions, place the weak at the mercy of the strong, foster monoply, permit an unwarranted interference with the natural course of trade, and deprive the citizen of the freedom guaranteed him by ...