Aladdin Industries, Inc. v. Associated Transport, Inc.

323 S.W.2d 222, 45 Tenn. App. 329

• Court: Court of Appeals of Tennessee
• Decided: August 6, 1958
• Status: Published

Opinions

FELTS, J.

These were contempt cases, ancillary to the main cases above styled, in which we affirmed the Chancellor’s decrees punishing appellants¹ for contempt for violating the temporary injunction granted by him to preserve the status quo pending a hearing and determination of the cases (first case, 42 Tenn. App. 52, 298 S. W. (2d) 770; second case, Memo op. July 27, 1956, unreported) .

The contemners in both cases joined in a petition to the Supreme Court of the United States for the writ of cer-tiorari. That Court granted the writ, vacated our decrees, and remanded the eases, in an opinion in these words:

“No. 116. Douglas McCrary, M. M. Bratton, et al., petitioners, v. Aladdin Industries, Inc. * * * Per Cu-riam: The petition for writ of certiorari is granted. The judgment of the Court of Appeals of the State of Tennessee, Middle Division, is vacated and the ■case is remanded for consideration in light of Teamsters, Chauffeurs, Helpers & Taxicab Drivers, etc. v. Kerrigan Iron Works, Inc., 353 U. S. 968, 77 S. Ct. 1055, 1 L. Ed. (2d) 1133.” McCrary v. Aladdin Industries, Inc., 355 U. S. 8, 78 S. Ct. 12, 2 L. Ed. (2d) 22.

And the Court’s mandate was that our decrees were vacated and the cases remanded to this Court “for consideration in light of Teamsters [etc.] v. Kerrigan Iron Works, Inc., 353 U. S. 968, 77 S. Ct. 1055, 1 L. Ed. (2d) 1133. ” The Kerrigan decision reversed our decree (Kerrigan Iron Works, Inc. v. Cook Truck Lines, Inc., 41 Tenn. App. 467, 296 S. W. (2d) 379) in an opinion as follows:

“No. 818. Teamsters, Chauffeurs, Helpers & Taxicab Drivers, Local Union No. 327, et al., Petitioners, v. Kerrigan Iron Works, Inc., et al. * * * Per Curiam: The petition for writ of certiorari is granted and the judgment of the Court of Appeals of Tennessee is reversed. Weber v. Anheuser Busch, Inc., 348 U. S. 468, 75 S. Ct. 480, 99 L. Ed. 546; General Drivers, etc. v. American Tobacco Co., 348 U. S. 978, 75 S. Ct. 569, 99 L. Ed. 762.” 353 U. S. 968, 77 S. Ct. 1055, 1 L. Ed. (2d) 1133.

For consideration of these cases in the light of that case, we restored them to the docket for hearing, and oral arguments have been heard and briefs filed by both sides, as to the decrees we should enter under the mandate.

Appellants contend that the Kerrigan case is a precedent for these cases, requiring us to reverse the Chancellor’s decrees and discharge appellants as contemners; that it shows that the Chancellor had no jurisdiction of the subject matter in these cases, because that was a labor dispute which had been pre-empted by federal from state power; and that the Chancellor’s temporary injunction was void and might be contemned with impunity.

Appellees insist that the Kerrigan case is no precedent for these cases; that the Chancellor had jurisdiction to determine all the questions, including that of his own jurisdiction, and to grant a temporary injunction to preserve the status quo pending such determination; that appellants could not collaterally attack or flout the injunction, but were bound to respect it pending a direct and orderly review of it; and that their defiance of it was contempt for which it was the Chancellor’s duty to punish them.

It would seem that if the Supreme Court had regarded its ruling in the Kerrigan case as a precedent requiring reversals in these cases, it would have entered the reversals, as it did in that case; and that the fact that it remanded the cases for consideration in the light of that case, indicates that they may be ruled by it or may be distinguished from it, either on a federal ground or a non-federal ground adequate to support the Chancellor’s decrees.

It is true these cases and the Kerrigan case had certain similarities or characteristics in common which, without referring to the differences, we stressed and emphasized in our former opinions (Kerrigan, 41 Tenn. App. 467, 296 S. W. (2d) 379; Aladdin, 42 Tenn. App. 52, 298, S. W. (2d) 770), because we thought they were determinative and called for the conclusion expressed by us. But there are at least these two obvious and important differences between that case and these:

1. Differences in parties, pleadings, and issues in the main suits.

(a) The Kerrigan case was a suit by a shipper against both the carriers and the labor union and its agents; and the relief sought was an injunction (1) to require the carriers to continue their service and (2) to enjoin the union and its agents from “concerted” conduct alleged to be “a conspiracy” and an “illegal boycott” to force complainant to accede to the demands of the other union striking and picketing complainant’s plant.²

(b) In the main Aladdin cases the suit was by a shipper against the carriers alone. No labor union and no union agent was a party to the bill. The only relief sought was an injunction to require the carriers to continue their customary service to complainant’s plant. While the bill did state, on information, that the reason the carriers refused to render the service was that their employees would not cross another union’s picket line at the plant, it did not state or show that any of such employees were union men or in anywise concerned in any labor dispute.³

2. Kerrigan was the main suit and these ivere ancillary.

(a) Tlie Kerrigan case was tlie main suit against the carriers, the union and its agents. There was no question of contempt. Defendants respected the authority of the court to try the case, and brought up its final decree for direct review by appeal. The only question was whether the action of the Chancellor, in assuming jurisdiction and rendering the final decree, was correct or not, and if not, the decree would be reversed though not void but only voidable or erroneous.

(b) These cases were not the main suits but ancillary contempt proceedings therein, under the same style. Appellants did not seek any orderly review, but flouted the temporary injunction as void and defied the court as a usurper. After being adjudged in contempt by the Chancellor, they brought up the contempt decree by appeal. The question is whether the temporary injunction was void. This depends on whether the Chancellor had jurisdiction to grant it, and this is to be determined upon the bill on which the court assumed jurisdiction and issued the temporary injunction.

Do these cases, despite these differences, fall within the principle of the Kerrigan decision? What is that principle? It is not stated in that opinion but is to be sought in the cases there cited, particularly the Weber case, since the other case cited, the American Tobacco Company, was itself a per curia/m citing the Weber case and depending on it, as we understand.

In the Weber case a labor union, the bargaining agent of employees of complainant, went on strike and picketed complainant’s plant to compel it to insert, in their proposed new collective agreement, a promise that it would have its millwright work clone only by contractors who had collective agreements with the union. Complainant charged the union with “an unfair labor practice” under sec. 8(b) (4) (D) of the Taft-Hartley Act, 29 U. S. C. A. sec. 158(b) (4) (D), before the National Labor Relations Board, and the Board dismissed this charge.

In the meantime, before the Board had acted on the charge, complainant sued the union in the state court to enjoin the strike and picketing, alleging it constituted “a secondary boycott” under state law, and also “an unfair labor practice” under section 8(b) (4) of the federal Act. This latter averment was held to make the case outside state power and within exclusive jurisdiction of the Board. The Court said:

“We realize that it is not easy for a state court to decide, merely on the basis of a complaint and answer, whether the subject matter is the concern exclusively of the federal Board and withdrawn from the State * *. But where the moving party itself alleges unfair labor practices, where the facts reasonably bring the controversy within the sections prohibiting these practices, and where the conduct, if not prohibited by the federal Act, may be reasonably deemed to come within the protection afforded by that Act, the state court must decline jurisdiction in deference to the tribunal which Congress has selected for determining such issues in the first instance.” 348 U. S. 481, 75 S. Ct. 488, 99 L. Ed. 558.

It seems that this is the principle of the Weber case, and that the Court held that the Kerrigan case was brought within this principle by the averment of the bill that defendants (the union and others) were guilty of “concerted action”, “conspiracy”, and “an illegal boycott”, to force complainant to yield to the other union demands, and the state court erred in assuming jurisdiction; hut whether this action was void, or merely voidable or erroneous, does not appear. : ' ‘

In these cases the question of the Chancellor’s jurisdiction of the subject matter is to be determined upon the state of the case at the time the court assumed jurisdiction and issued the temporary injunction — that is, upon the allegations of the original bill, which must be taken as true for the purpose of testing jurisdiction. 1 Crownover’s Gibson’s Suits in Chancery, 5th ed., sec. 146; Myers v. Wolf, 162 Tenn. 42, 50, 34 S. W. (2d) 201, 203; Malden Trust Co. v. Brooks, 276 Mass. 464, 177 N. E. 629, 80 A. L. R. 1028; Moore v. Chesapeake & O. R. Co., 291 U. S. 205, 210, 54 S. Ct. 402, 78 L. Ed. 755, 759; Brown v. Coumanis, 5 Cir., 135 F. (2d) 163, 146 A. L. R. 1241.

The averments of the original bill (practically the same in each case) made a case where a shipper was entitled to an injunction to require the carriers to continue the service, which case was within the Chancellor’s jurisdiction, his being the court of general equity jurisdiction in Tennessee. Aladdin Industries v. Associated Transport, 42 Tenn. App. 52, 298 S. W. (2d) 770, 775, and authorities there cited.

Upon the averments of the bill, taken as true, it was within the Chancellor’s power to grant the temporary injunction to preserve the status quo pending determination of the cases. The statu,s quo may be a condition of action, as well as a state of rest, and in such case it is proper to enjoin carriers to continue the service (Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., C. C., 54 F. 730, 741, 742, 19 L. R. A. 387, 393), and the injunction runs not only against tlie parties defendant (carriers) but also against their officers, agents and employees without their being made parties to the suit. Aladdin Industries v. Associated Transport, supra, 42 Tenn. App. 52, 298 S. W. (2d) 776, and authorities were cited; Frankfurter and Greene, The Labor Injunction, 123-133, and cases there cited.

No labor union and no union agent was made a party to the bill. Nor was any relief sought against any labor union or any union agent. The temporary injunction ran against the carriers, “ their officers, agents, and employees”. But the bill did not refer in any way to appellant union, Local 327, or to any of its officers or members, or to any of the appellants. Nor did it contain any averment of any labor dispute or union conduct within the federal Act.

This temporary injunction was served on defendants and their employees were notified of it, and they complied with it and rendered carrier service for some two months, when they began to disobey and flout the injunction. Thus, when they became guilty of contempt, the only pleading was the bill, which contained no averment to take the case out of state power or to make a case preempted by federal authority.

Then came a supplemental bill, which only added more carriers, and petitions for contempt, which did not change the nature of the case already before the Chancellor, but only brought before him the fact of appellants’ prior contempt. The petitions charged that the two unions (Local 327 and Local 5003) and their officers and agents bad conspired to violate the temporary injunction by inducing tbe carriers’ employees not to perform the service ; and that Local 327 had placed persons at the plant carrying its sign, under the pretense that it was picketing to organize complainant’s office employees.

But these allegations were of acts of contempt, not of acts of “concerted activities” under sec. 7 of the federal Act, or of a union “unfair labor practice” under sec. 8(b) (4) of that Act; and we think such averments did not divest the Court of the jurisdiction it had already taken of the cases, or make the case one pre-empted under federal authority, or relieve appellants of the consequences of their prior contempt for their defiance of the temporary injunction and of the court’s authority.

It is true in our former opinion (42 Tenn. App. 52, 298 S. W. (2d) 777, 779-783), we assumed, arguendo, that the refusals of appellant truck drivers to cross the other union picket line and render the carrier service, as required by the temporary injunction, were “concerted” refusals, and held that even so they were neither “concerted activities” under sec. 7, nor a union “unfair labor practice” under sec. 8(b) (4) of the federal Act.

But in fact such refusals were not concerted. The answers of appellant truck drivers stated that the union had not advised them but each individual had determined the matter for himself; and while they confessed they had violated the injunction by their refusals, each stated that his refusal was caused by his fear that violence would be done himself or his family if he crossed the other union’s picket line; and each testified to the same effect.

Tliese statements in appellants’ answers and in their testimony, that each of them was acting individually and separately, and not in concert, are binding- upon them and estop them to contend to the contrary. Crownover’s Gibson’s Suits in Chancery (5th ed.), sec. 467; Wilson v. Winters, 108 Tenn. 398, 67 S. W. 800; Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S. W. 313; Fagg v. Benton Motor Co., 193 Tenn. 562, 564, 246 S. W. (2d) 978, 979.

Since the acts of each of the individual appellants in defiance of the temporary injunction were separate and individual acts, and not “concerted activity”, we understand they could not be a “concerted activity” within the protection of sec. 7 of the federal Act. N. L. R. B. v. Illinois Bell Tel. Co., 7 Cir., 189 F. (2d) 124, 127-129. Nor could such acts of these individuals, unconnected with any union, be a union unfair labor practice under sec. 8(b) (4) of that Act, which by its terms applies only to a “labor organization or its agents”.

As far as appellant union is concerned, its placing a person with its sign at complainant’s plant was neither bona fide nor for a lawful purpose, but was done solely to defy the court and defeat the temporary injunction requiring the carriers and their employees to render the service. The Chancellor so found and, as pointed out in our former opinion, the proof amply sustained his finding. We think the union cannot invoke the federal Act to shield its willful defiance of the state court.

So, in the main Aladdin cases, we think the subject matter was not preempted by the federal act and withdrawn from state power but was within the Chancellor’s jurisdiction. But irrespective of ‘whether lie had jurisdiction in the sense that he could have entered final decrees that would have ultimately been held free from error, he had jurisdiction to determine all the issues, including that of his own jurisdiction, and to grant a temporary injunction to preserve the status quo pending such determination.

And pending such determination no person was at liberty to defy the court or to aid any party defendant in a breach of the injunction. Such an injunction, however erroneous, must he obeyed until set aside by the court granting it or by an appellant court. State v. Ragghianti, 129 Tenn. 560, 567, 167 S. W. 689, 690; Nashville Corp. v. United Steelworkers, etc., 187 Tenn. 444, 450, 215 S. W. (2d) 818, 820; Churchwell v. Callens, 36 Tenn. App. 119, 252 S. W. (2d) 131; United States v. United Mine Workers of America, 330 U. S. 258-385, 67 S. Ct. 677, 91 L. Ed. 884-961.

These cases distinguish between an order that is void and one that is only voidable or erroneous, and recognize that a void injunction binds no one. If a court should go so clearly and so far outside of its jurisdiction as to act, not as a court, but as a usurper, its order would be void, would bind no one, and could be disregarded by any one with impunity. The matter is stated thus by Mr. Justice Frankfurter:

“Only when a court is so obviously traveling outside its orbit as to be merely usurping judicial forms and facilities, may an order issued by a court be disobeyed and treated as though it were a letter to a newspaper. Short of an indisputable want of authority on the part of a court, the very existence of a court presupposes its power to entertain a controversy, if only to decide, after deliberation, that it has no power over the particular controversy.” United States v. United Mine Workers of America, supra, 330 U. S. 309-310, 67 S. Ct. 704, 91 L. Ed. 921.

Where a court has general equity jurisdiction and its action is invoked by proper pleading’s upon a matter fairly debatable, at least not obviously outside such jurisdiction, the court has authority to determine the issues, including that of its own jurisdiction, and to grant a temporary injunction or stay order to preserve the status quo pending such determination, and to punish for contempt disobedience of such order or injunction.

This is a matter of state law, or rather a general principle of equity which is universally recognized and applied by all courts, both federal and state. We cite some illustrative cases applying this rule:

In Seaward v. Paterson, (Eng.) L. it. [1897], 1. Ch. Div. 545, it was held that a Court of Chancery has jurisdiction to punish one not a party to the suit, not a party to the injunction and not bound by it, for contempt in defying the court by aiding a defendant in committing a breach of the injunction. It was there said by A. L. Smith, L. J.:

“As regards the law, I have myself no doubt that if a person who knows that an injunction has been granted aids and abets in committing a breach of it the Court of Chancery has jurisdiction to commit him for contempt, although he is not a defendant in the action, and is not a person against whom the injunction has been granted” (italics ours).

In Pitcock v. State, 91 Ark. 527, 121 S. W. 742, 744, 134 Am. St. Rep. 88, 93, it was held that a Court of Chancery has jurisdiction to determine all the issues of a case, including that of its own jurisdiction, and to grant a temporary injunction to preserve the existing status of the subject matter, and to punish for contempt disobedience of such temporary injunction. It was there said:

‘ ‘ In considering this question the distinction must not be overlooked between the violation of a preliminary injunction preserving the status quo of the subject-matter of the litigation during the pendency thereof and the final decrees of courts requiring the parties to do or not to do the things enjoined upon them by such decrees. In the latter class of cases, if the decree was rendered without jurisdiction, it can be disobeyed with impunity, for no one owes obedience to a void decree, as it is without any force whatever * * * On the other hand, a court possesses the power of hearing and determining the question of its jurisdiction, and may, while so doing, require the parties to preserve the status of the subject-matter. United States v. Arredondo, 6 Pet. 691, 8 L. Ed. 547; United States v. Shipp, 203 U. S. 563, 27 S. Ct. 165, 51 L. Ed. 319, [8 Ann. Cas. 265].”

In State v. Patten, 41 N. M. 395, 69 P. (2d) 931, 933, the Court said: “The test of the jurisdiction of a court is whether or not it had poiver to enter upon the inquiry; not whether its conclusion in the course of it was right or wrong.”

This general principle of equity has often been applied in the federal courts. Some of the cases so applying it are: United States v. Shipp, 203 U. S. 563, 27 S. Ct. 165, 51 L. Ed. 319, 8 Ann. Cas. 265; Howat v. State of Kansas, 258 U. S. 181, 189, 190, 42 S. Ct. 277, 66 L. Ed. 550, 559; Carter v. United States, 5 Cir., 135 F. (2d) 858, 861; United States v. United Mine Workers of America, supra.

In the Shipp case a man at Chattanooga, under sentence of death in the state court for rape, sought a writ of habeas corpus in the United States Circuit Court. That Court held his petition presented no question of federal jurisdiction. He appealed to the Supreme Court of the United States and obtained in that Court an order staying all proceedings against him and retaining custody of him pending his appeal. On the same evening the newspapers carried a story of the stay, and a mob broke into the jail and lynched him.

Shipp, the Sheriff, was charged with a conspiracy in connection with the lynching, and was brought before the Supreme Court to show cause why he should not be held in contempt. He objected that since the Court had no jurisdiction of the subject matter, its order might be contemned with impunity. The Court overruled this contention and held that even if it had no jurisdiction of the appeal, it still had jurisdiction to determine the question and to preserve the status quo pending such determination, and to punish Shipp for contempt.

In the Carter case, Coumanis obtained an injunction enjoining Carter from picketing his restaurant and interfering with delivery of food, beverages, etc., to his place. Carter violated this injunction and though the District Court had no jurisdiction to issue the injunction (Brown v. Coumanis, supra, 135 F. (2d) 163), nevertheless it liad jurisdiction to punish. Carter’s contempt. The Court said:

“It cannot now be broadly asserted that a judgment is always a nullity if jurisdiction of some sort or other is wanting. It is now held that, except in case of plain usurpation, a court has jurisdiction to determine its own jurisdiction, and if it be contested and on due hearing it is upheld, the decision un-reversed binds the parties as a thing adjudged” (citing cases). Carter v. United States, 135 F. (2d) 861.

In Howat v. State of Kansas, supra, under a Kansas statute Gen. St. 1915, sec. 2957, a state court issued an injunction prohibiting defendants from calling a general strike in the mines. Defendants treated the injunction as void and disregarded it, upon the theory that the statute was unconstitutional; and the court punished them for contempt. They brought the question to the Supreme Court of the United States. That Court held that they were bound to obey the injunction whether the statute was constitutional or not. The Chief Justice said:

“An injunction duly issuing out of a court of general jurisdiction with equity powers, upon pleadings property invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them, however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming, but void law going to the merits of the case. It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority to be punished.” (citing cases). [258 U. S. 181, 42 S. Ct. 280.]

All of the federal eases above cited, with others, were approved in United States v. United Mine Workers of America, supra. In that case the District Court issued a temporary order restraining defendants from calling a strike. Defendants disobeyed the injunction and were punished for contempt. It was held that whether the Court had jurisdiction to grant final injunctive relief or not, it had jurisdiction to determine the question of its jurisdiction and to issue a temporary restraining order to preserve the statuts quo pending such determination, and to punish disobedience of the order as contempt.

It is our conclusion that upon this general principle of equity the Chancellor, irrespective of the question of his ultimate jurisdiction, had jurisdiction to determine the question, and to issue a temporary injunction preserving the status quo pending such determination, and to punish appellants for contempt for disobeying the injunction.

A decree will be entered in this Court affirming the Chancellor’s decrees in these ancillary contempt cases and remanding them to the Chancery Court, Part II, for further proceedings not inconsistent with this opinion. The costs are adjudged against appellants.

Avery, C. J., (Western Section) and Shriver, J., concur.

1 In the first case the Chancellor found 14 individuals and a labor union guilty of contempt and sentenced each of the men to three days in jail and the union to pay all the costs. In the second case he found five men guilty of contempt and fined each $50 and costs.

2 In the Kerrigan case the bill of complaint alleged, among other things: “Complainant alleges that the combined and concerted action among the members of the defendant Local No. 327 and by said members and the carriers which employ them, including defendants, is in law an unlawful conspiracy and constitutes an illegal boycott, the purpose of such concerted action being to deprive complainant of public carrier service and to thereby force complainant to accede to the terms demanded by the other union conducting a picket line at complainant’s plants, which complainant has no legal obligation to do.”

3 The original bill of complaint (substantially the same in both Aladdin cases) did not refer in any way to appellant union, Local 327 of Teamsters, etc., or any of its agents or any of the other appellants. While the bill did refer to another union picket line at the plant, it did so only to show the irrelevance of that matter. It averred, on information and belief, “that said pickets in the vicinity of complainant’s said plant do not furnish the defendants with a legal or sufficient excuse for failing and refusing to carry freight to or from the complainant’s said plant.”