United Factory Outlet, Inc. v. Jay's Stores, Inc.

278 N.E.2d 716, 361 Mass. 35, 1972 Mass. LEXIS 847

• Court: Massachusetts Supreme Judicial Court
• Decided: February 4, 1972
• Status: Published

Opinions

Cutter, J.

A decree dated April 6,1966, set out a preliminary injunction directing eight corporate defendants “and their respective and several officers, agents, servants, employees, and assigns, and each of them . . . until further order of the court, [to refrain] from using in any form or for any purpose the words ‘Mammoth Mart’ in connection with any store or business enterprise owned or operated by” them in Worcester, subject to conditions which here need not be set forth in detail. The defendants violated the injunction by advertisements in a Worcester newspaper on December 5, 12, and 19, 1969. They assert that the violations were unintentional. Upon the present contempt petition, a Superior Court judge adjudged the corporations in contempt, ordered (a) the payment of a fine of $10 to the plaintiffs, “as there was no evidence of any injury,” and (b) reimbursement of the plaintiffs (in the amount of $100) for “expenses . . . in enforcing . . . rights concerning the contempt together with costs.” The defendants appealed. The case is before us on the petition for contempt, a report of material facts, and the reported evidence.

The defendants’ “sole contention is that there cannot be civil contempt unless there is wilful disobedience of the court’s decree.” We assume, without deciding, that the evidence discloses no wilful disobedience. Nevertheless, the forbidden words, as the judge found, originated in manuscript prepared by the advertising department of the parent defendant corporation, and the advertisements appeared in the newspapers as so prepared.

1. The distinction between civil and criminal contempts was discussed by Mr. Justice Lummus in Godard v. Babson-Dow Mfg. Co. 319 Mass. 345, 347-348. He said (p. 347), “If the penalty is not imposed wholly for the benefit of the aggrieved party, but in part at least is punishment for the affront to the law, the contempt is deemed criminal. If, on the other hand, the power of the court is used only to secure to the aggrieved party the benefit of the decree, either by means of a fine payable to the aggrieved party as a recompense for his loss through disobedience to the decree, or by means of imprisonment terminable upon compliance with the decree, then the contempt is deemed civil.” The present contempt was properly treated as civil, for the plaintiffs seek no punishment of the defendants. They attempt merely to obtain the benefit of the 1966 preliminary injunction.

To constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command. See United States Time Corp. v. G.E.M. of Boston, Inc. 345 Mass. 279, 283. The injunction in the decree of April 6,1966, showed a clear and explicit command. The judge’s findings, already mentioned, showed a plain violation of that command. The defendants contend that, in addition, there must be proof that the disobedience is wilful. We reject this contention, at least when made in behalf of a corporation.¹

When a corporation is charged with civil contempt for violating a court order because of the acts of its agents or servants, it is not necessary to show that there was wilful disobedience or intention to violate the order. It is enough to establish that persons acting for the corporation were responsible for acts or inaction which in fact constituted a violation. See McComb v. Jacksonville Paper Co. 336 U. S. 187, 191, where it was said, “The absence of wilfulness does not relieve from civil contempt .... Since the purpose [of civil contempt] is remedial, it matters not with what intent the defendant did the prohibited act. The decree was not fashioned so as to grant or withhold its benefits dependent on the state of [the defendants’] mind .... It laid on them a duty to obey specified provisions of the statute. An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently.” ² To the same effect are numerous other decisions. Godard v. Babson-Dow Mfg. Co. 319 Mass. 345, 349 (“Proof-of good faith and good intentions on the part of” a corporation and two of its officers “would not purge them ... at least of a civil contempt.” Damages [see pp. 346-347] only were assessed). Lustgarten v. Felt & Tarrant Mfg. Co. 92 F. 2d 277, 280 (3d Cir.) — “[B]elief, motive, or intent ... do not excuse” the persons alleged to be in contempt although the circumstance that they “were acting in good faith may be taken into consideration in mitigation of their offense”. National Labor Relations Bd. v. Lawley, 182 F. 2d 798, 800 (5th Cir.). Evans v. International Typographical Union, 81 F. Supp. 675, 688 (S. D. Ind.).³ Singer Mfg. Co. v. Sun Vacuum Stores, Inc. 192 F. Supp. 738, 741 (D. N. J.) — “The orders of the Court must be obeyed, and to absolve a large or small corporate defendant from its responsibilities simply because the corporation has ordered compliance but has not sufficiently policed same, would be to open the door for ivholesale disobedience of the Court [order]. . . . Although the salesmen may have been acting on their own in violating the decree, the corporation certainly was reaping the benefits therefrom” (emphasis supplied). On the strength of the authorities cited above, we hold that (a) good faith, (b) absence of wilful disobedience, and (c) lack of intent to violate a decree do not constitute a valid defence for a corporation charged with civil contempt. There was no error in the decree against these corporate defendants.

The defendants contend that certain Massachusetts cases treat wilful disobedience of an injunction as an essential element of a civil contempt. See Alves v. Braintree, 341 Mass. 6, 9-12;⁴ Nickerson v. Dowd, 342 Mass. 462, 464 (charges in contempt petition held not sustained); Massachusetts Commn. Against Discrimination v. Wattendorf, 353 Mass. 315.⁵ In each of the cases just cited the charge of civil contempt ran (primarily at least) against individuals, and not against corporations.⁶ In the present case no individual is charged with civil contempt. As all the present defendants are corporations, there is no occasion in this case to review these cases or to reconcile them. They do not, in any event, apply to the facts before us.

Decree affirmed with costs of appeal.

1 No question is now presented concerning what proof of a violation of an injunction is required to constitute criminal contempt. Compare Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 296-300. Compare also Commonwealth v. Beneficial Fin. Co. 360 Mass. 188, 258-261; Williams, Criminal Law, The General Part (2d ed.), §§ 85, 281.

2 The opinion went on to say (emphasis supplied), “[T]he grant or withholding of remedial relief is not wholly discretionary with the judge .... The private or public rights that the decree sought to protect are an important measure of the remedy.” In the McComb case, however, two justices (Mr. Justice Frankfurter and Mr. Justice Jackson) were of opinion (pp. 195-197) that the order (allegedly violated) was too ambiguous and vague to support contempt proceedings for its asserted violation. As stated above, the 1966 decree in the present case was unequivocal and clear.

3 For discussion of considerations, in part discretionary, with respect to particular remedial sanctions by way of civil contempt, see Union Tool Co. v. Wilson, 259 U. S. 107, 112-114; United States v. United Mine Workers of Am. 330 U. S. 258, 303-304 (where, in discussing the court’s discretion in civil contempt with “the purpose . . . to make the defendant comply,” it was said that the court must “consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired”); Dobbs, Contempt of Court: A Survey, 56 Cornell L. Rev. 183, 235-236, 241-245, 268-273, 275-282; Notes, 33 U. of Chicago L. Rev. 120, 128-133; 48 Mich. L. Rev. 860, 861-863; 57 Yale L. J. 83, 90-107. See also Penfield Co. of Cal. v. Securities & Exch. Commn. 330 U.S. 585, 589-593; Shillitani v. United States, 384 U. S. 364, 370-372. Compare Parker v. United States, 126 F. 2d 370, 379 (1st Cir.) ; S. C. 135 F. 2d 54, 59-60 (1st Cir.), cert den. 320 U. S. 737; S. C. 153 F. 2d 66, 70-71 (1st Cir.), where (per Magruder, J.) it is said, perhaps too inflexibly, that where a plaintiff establishes damage to himself by disobedience of a decree in his favor he “is entitled as of right to an order in civil contempt imposing a compensatory fine.” No abuse of whatever discretion exists appears in the present case.

4 In the Alves case (pp. 11-13) town assessors were held not to be in contempt because they had no power or duty to act. Other town officials were not held in contempt because their authority and duty under an ambiguous statute became clear only when this court decided the contempt case. This court declined “to assume that public officers would not carry out their duty under the law once that law has been judicially declared.” This, in effect, was equivalent to a decision that no usual contempt remedy or sanction was necessary to assure compliance.

5 In the Wattendorf case, an individual, conducting a real estate office, was charged with contempt. He was found by the trial judge (a) not “intentionally or personally [to have] violated” a decree, somewhat limited in application, which did not in terms run against employees and agents, and (b) to have instructed his employees to refrain from any such violation. A sales manager (not a party to the contempt proceeding), working on commission, engaged in conduct forbidden to the owner of the business by the decree. The trial judge did not adjudge the owner (Wattendorf) in civil contempt. This court, citing decisions from outside Massachusetts, perceived, in the circumstances, no abuse of discretion in the judge’s action. There was no finding of any monetary injury to the plaintiff commission as a consequence of the violation. We need not now speculate whether, if the judge had thought there was a violation, he would have been bound, as matter of law, to conclude that a fine or some other usual civil contempt remedy or sanction was required to bring about future compliance by Wattendorf. The judge might reasonably have concluded that future compliance was assured by his pointed admonition to Wattendorf concerning “the need for him to exercise closer supervision over his employees to insure compliance.” See authorities cited, fn. 3, supra.

6 We have recently commented that courts may be willing to impose upon a corporation (which can be subjected only to a fine) a penalty or sanction for the acts of another which they would be reluctant to impose upon “a natural person . . . who can suffer imprisonment or ignominy.” See Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 263-264.