Berry Pontiac, Inc. v. Burke
This text of 173 N.W.2d 243 (Berry Pontiac, Inc. v. Burke) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Tlie complaint here was filed by plaintiff, Berry Pontiac, Inc., against Boland L. Burke on Friday morning, February 23, 1968. Burke was also served with an order to show cause why a temporary restraining order should not be issued at the hearing which was to be held that same afternoon. There is some question as to whether Burke was represented by counsel at that hearing as apparently he was unable to contact his attorney and consequently contacted the attorney for his union, the intervening defendant, Automotive Salesmen’s Association, which was not at that time a party to the action.
The attorney for the union stated that he wasn’t prepared to represent Burke. However, the attorney did agree to the issuance of a temporary order which was by its own terms to expire on the following Monday, February 26, 1968 when a hearing on the merits was scheduled.
The temporary restraining order prevented Burke, his agents or any person working in concert with him, from defacing, destroying, damaging or otherwise interfering with Berry Pontiac’s property, or from coming within 200 feet of its property.
The Monday hearing was adjourned at the request of Burke’s counsel because of possible prejudice to Burke in criminal proceedings arising out of the same facts as alleged in Berry Pontiac’s complaint for injunctive relief. 1
*651 The court at that time extended the temporary restraining order until April 1, 1968 to allow the criminal proceedings to proceed unprejudiced. Since the parties were before the court, this was done orally.* 2 The orally-extended injunctive order issued at the Monday hearing differed significantly from the temporary restraining order issued the previous Friday in that it did not prevent Bnrlce from coming within 200 feet of Berry Pontiac’s property and expressly provided that he could engage in peaceful *652 picketing and in any other form of concerted labor activity or collective bargaining.
On March 1, a motion for contempt was filed, alleging that on February 29, 1968, the respondents, Boland Burke, Glenn Chubb and Dale Bittenhouse, had sought to intimidate a customer of Berry Pontiac by throwing a firecracker at his car, thus violating the injunction. The union was allowed to intervene at this time.
Hearings were held in Wayne county circuit court before Judge Victor Baum who found defendants in contempt and sentenced them under the statute to 30 days in jail and to pay a $250 fine. MCLA § 600.1715 (Stat Ann 1962 Rev § 27A.1715). They appeal that conviction.
The defendants on appeal rely for support of their contentions of error by the trial judge on the cases which were decided by the Supreme Court of this state concerning the epic battle between The Cross Company and Local No. 155 of the United Automobile Workers. Cross Company v. UAW Local No. 155 (AFL-CIO) (1963), 371 Mich 184; Cross Company v. UAW Local No. 155 (AFL-CIO) (1966), 377 Mich 202.
We find the so-called “Cross Cases” are dispositive, but a careful application of those cases to the facts here makes it clear that no reversible error was committed.
The jurisdiction of the court to issue a temporary restraining order and preliminary injunction is clear. Cross (1963), supra, at pp 200-203. Therefore, even if we were to decide (as defendants claim we should) that the injunction was improvidently granted, once issued it must be obeyed and can be judicially enforced. Cross (1963), supra, at pp 195, 203. See also Town & Country Motors, Inc. v. Local Union No. 328 (1959), 355 Mich 26, at p 55.
*653 The defendants allege that the first Gross case stands for the proposition that “(in) labor cases, where picketing is sought thus to be enjoined or restricted summarily, nothing less than a clearly persuasive showing of the imminent and irreparable injury beyond the power of the regularly constituted police authorities of the community to control must be insisted upon by the chancellor to justify his exercise of the extraordinary power of injunction prior to such hearing as due process demands”, p 197, and that since no showing was made before the injunction was issued it was not only improvident but void and unenforceable. See Town & Country Motors, Inc. v. Local Union No. 328, supra.
Yet the standard established in Gross (1963), supra, at p 197, applies by its own terms to those cases where “picketing is sought * * * to be enjoined or restricted summarily”. Such is not the ease here, as the trial judge made it clear in the order issued at the Monday, hearing that the order was not meant to prevent, restrict or regulate picketing, but was intended only to enjoin the commission of specific acts which, even without the injunction, were crimes.
In addition, the hearing referred to in the first Gross case was delayed here by the court’s solicitude for Burke’s requested delay to prevent possible prejudice of pending criminal actions against him arising out of the. same circumstances, as alleged in Berry’s complaint.
Given the facts here presented, we find that the injunctive order which was issued at the conclusion of the Monday hearing is not void and is therefore enforceable.
The defendants contend that even if the court had jurisdiction to issue the injunction its finding of a violation of the injunction and therefore the convic *654 tion for contempt of court was not supported by competent evidence. We do not agree.
The Supreme Court in Gross (1966), supra, set down the standard by which we are bound when it said at pp 217, 218:
“Upon appeal of a conviction for contempt this Court does not weigh, the evidence or the credibility of witnesses (citation omitted). The findings of the lower court must be affirmed if there is competent evidence to support the findings. (Citation omitted)”.
The trial court heard an eyewitness account of the incident from one whom the court characterizes in the record as “a reliable witness”, and as a “skilled observer”, which establishes not only the act itself, but also, the identity of the defendants as the actors. Although defendants challenge the trial court’s characterization of and reliance on the eyewitness, this question of credibility is properly left to the trial court as trier of facts. We do not find that his decision was clearly erroneous.
After careful review of the record on appeal and due consideration to the issues raised, we find that the trial court did not err either in the issuance of the injunction or in the finding of contempt.
Affirmed.
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Cite This Page — Counsel Stack
173 N.W.2d 243, 19 Mich. App. 648, 73 L.R.R.M. (BNA) 2262, 1969 Mich. App. LEXIS 1015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-pontiac-inc-v-burke-michctapp-1969.