*1 plaintiff The that he knew the testified crane;
transmission lines were above al., AMALGAMATED MEAT CUTTERS et he that knew the defendant cause the would Appellants, cable on the crane he lowered to point where it to the could hook COMPANY, CARL’S MEAT & PROVISION post; that he “was very aware” that much Appellee. got if the crane in the lines transmission No. 7317. while he was holding touching the cable shocked; or the hook that he that would be Texas, Appeals of Civil he did not operation watch the of the crane Beaumont. being defendant; as it was extended Dec. 1971. that at that standing time he was on the Rehearing Denied Jan. 1972. ground with his back towards defend- ant; hands; that he watching was his
the crane was not in the lines when he first cable;
grasped the and that no time did
he glance up up or look if the crane to see
inwas the transmission lines.
The witness Bill Clements testified “right
he was there when with them * * * pulling post were and I saw high
that this going was line—this boom * * * get in these wires started to tell I boom,
them to watch going get it was * * * up those wires I there get
going out of I myself there because
could see that flopping boom was around wires, going get
those I seen ** it. started walking off legal
We hold that the evidence
ly sufficient support answers jury’s 9, 10,
to issues nos. motion 17. In his trial, plaintiff complain
for new did not findings against great weight
these are preponderance of the We evidence.
are, therefore, pass without question.
on this Texas Rules Procedure; Darryl Ford
Rules Civil Company (Tex.Sup., 1969)
Motor However, had the 633. if we
authority to question consider the we would
hold, light of the entire of our review
record, against findings
great weight preponderance of the evi-
dence. have carefully ap- all considered
pellant’s points pre- None contentions.
sent error. They are overruled. judgment is affirmed.
KEITH, Justice. an order granting tempo-
We review rary injunction issued lengthy after a hear- ing. Defendants restrained and en- joined, pending a trial the merits the cause from
“ . distributing, . . publishing and disseminating to public anyone or to pertaining making statements or or uttering, writing otherwise, deroga- tory concerning remarks Plaintiff’s meat products the effect that such meat products premises Plaintiff’s equipment contained therein and/or unsatisfactory unsanitary, fur- ther statements to the effect or as would tend produc- to indicate that Plaintiff is ing products meat for sale to public might injurious inor any way for unfit human consumption or making uttering statements that con- capabilities cern the employees ” Plaintiff; . . . engaged Plaintiff is in the business of processing poultry meat and for distribu- restaurants, tion and to various sale insti- tutions, and commercial users in the Dallas while, according area plaintiff’s allega- tions, defendant represent “The claims to employees various of Plaintiff which are engaged striking Plain- place business in tiff’s with connection dispute.” a labor 2, 1971, alleged August that on Plaintiff customers of defendant various mailed Warning” “Quality plaintiff a letter De- stating part Texas State partment reports had issued doc- of Health sanitary conditions umenting unfavorable plaintiff’s plants and had condemn- within large consumption for ed human as unfit processed Four quantities meat therein. days alleged, defendant later, so distributing handbills near cafe- began Mullimax, Collins, Wells, Mauzy Dal- bought plaintiff, meat from teria which las, appellants. for specifically made (which handbill was Passman, be- Jones, Stewart, temporary injunction order) Andrews & part Company, Dallas, appellee. hereto as an' exhibit. ing appended alleged activity sort;
Plaintiff that the information so ondary and no ac- This followed damage Appellee.” disseminated was false. tual shown to by very general allegations that such con- apparent, however, It seems that the ac- irreparable damage duct “will cause tivities of defendants are not conducive to fact, jury to Plaintiff’s business and *3 increased sales of by meat to be consumed Plaintiff has reason to such believe that customers who were “handbilled.” by already Defendant date have actions damaged generally and interfered with appears dispute It in without our record damage Plaintiff’s business all the controversy that the parties between the detriment of Plaintiff.” Plaintiff then the dispute. arises out of a labor Defendants alleged irreparable that it would “suffer brief, so in their contend re- harm, damage, injury” detriment and sponds by however, is, stating that “[i]t adequate remedy which it had at law no fair to state that ‘handbilling’ the temporary injunction unless the is- should dispute commenced of a as result labor prayer permanent sue. The was for in- in that APPELLANT has not junction upon hearing a final but no other recognized been as bargaining repre- the particularly, plain- sought relief was employees.” sentative of APPELLEE’S —and damages, tiff did not actual or seek either showing find other references record punitive. pendency charges of and counter- charges with the Labor National Relations The that the state- trial court found Indeed, arising dispute. Board out of the “were, according ments so made cause, plaintiff after submission of this testimony, misleading either incorrect or filed with this court an instrument show- context; that the De- or taken from clearly ing that National Relations Labor utilizing . . . were fendants] jurisdiction Board had assumed of dis- plan formation as a and scheme under pute and had entered an Defendant order. bring which about an end result to which replied has not to such “evidence” nor has remedy adequate Plaintiff had no at law.” objected to our consideration thereof. A indicates review of record However, point has no attack defendant handbill were statements contained ing the trial court’s to hear the true, partially at but we not take least do preemption cause under the doctrine so findings issue with the trial court’s forcefully applied the Texas courts “misleading some of such statements 178, 72, parte George, Ex 371 U.S. 83 S.Ct. But, note taken from context.” do vacating and (1962), 9 133 revers L.Ed.2d find, plain- that the trial did not as court ing the decision of the Court of contends, tiff such statements now 103, reported Texas 358 S.W. purpose opin- were false. For the of this George: said in (1962). 2d 590 As was ion, we will assume that statements jurisdic “The District Court was without were, fact, false, part.1 at least arguably petitioner’s picketing tion if true, it is stated But also defend- prohibited arguably protected the Na ant in its brief: tional Labor Relations Act.” U.S. coercion or 73, “There was no evidence of p. p. 179.) 83 See also Broth S.Ct. at
threats; primary pick- no Ter R. Trainmen v. hood of Jacksonville eting anyone; sec- 1109, of to induce 369, effort Co., minal 89 22 394 U.S. S.Ct. elementary, course, 1. “It publication, imper is of in a an constitutes case of this kind the con courts do not missible on First Amendment restraint validity Burger Organi rights.” cern themselves with the truth Chief Justice publication. Keefe, of Under Near zation for A Better Austin v. Minnesota, 625, 283 U.S. 51 S.Ct. U.S. 29 L.Ed.2d S.Ct. 1575 injunction, (1971). L.Ed. 1357 far so imposes prior speech as it restraint lidity. Keefe, supra (402 91 S. U.S. Amalgamated Asso (1969); L.Ed.2d 344 consti Railway 5). L.Ed.2d at Street, and Ct. Electric ciation principle governing our action Lockridge, tutional Employees v. Motor Coach Ex that set out the court 29 L.Ed.2d 91 S.Ct. U.S. Tucker, supra: an discussion of (1971). For excellent doctrine, Jeffers, development see power in a “The existence Injunction in Texas Courts “The Labor person’s equity supervise one court of Today,” Law Rev. 938 36 Texas another, opinion or to dictate what another, plain- may say person one we have as to While doubt ly emphatically refuted the 8th jurisdiction of the court under district Rights Bill section [of doctrine, having preemption it not been Constitution], Texas *4 so, defendant, raised do not do we sponte.2 sua section, part, reads: “That places primary reliance Plaintiff liberty to be at “Every person shall Cain, Local Union Cain, Brogden & Inc. v. on write, publish opinions his speak, 942, Etc., 304, 47, Tex. 285 S.W.2d 155 No. responsible for being any subject, “It is court said: (1956), wherein the 946 no law privilege; that abuse of peaceful settled that now wéll curtailing the liber- passed shall ever constitutional protection under the loses its press.” ty speech or the of pur- its speech if one of guaranty of free Drivers, v. Etc. Wa contrary public policy.” poses is In Dallas General [em- 408, Dallas, 295 S. Tex. mix, Inc., to our 156 It then calls at- of phasis original] 873, present Chief parte Tuck- language from tention this Ex 879 W.2d majority said: er, 335, 75, (1920): Justice, speaking 76 for the 220 110 Tex. S.W. “Equity protect the exercise of 335, Tucker, 110 Tex. Ex “In rights from natural and contractual 75, itself this Court committed 220 S.W. by attempts at intimidation terference proposition emphatically to the may threats coercion. Verbal or written pro- ill another speak of right of one do, that character. assume When 8, of Rights, by the Bill of Sec. tected conduct, or threatened amount to Constitution, and I of State Article may prop- conduct, and for that reason power no to control has that a court sort, erly of be restrained. Cases says an- of person injunction what one analogous nature, are not to be or dispute, unless other, in a labor even with this confounded one.” language will be evidence that there be intimidating coercive which used the contention disagree with in character.” prior ex Any restraint on so advanced. “heavy Atwood, pression comes to this court with also, 295 S.W. Lawrence v. See 1956, Beaumont, va- presumption” against its constitutional 298, (Tex.Civ.App., 2d 300 supporting following 890, 334, Warnasch, 2. See the authorities 295 S.W.2d 156 Tex. v. Sunland authority appellate potential Supply (1956) ; of an 893 State 316, (Tex.Sup.1966). Co., its lack even court though note 319 404 S.W.2d assignment duty Indeed, appears no is directed at such to be Fidelity juris appellate fact: v. States Perkins United its lack of court to note Guaranty Co., (Tex. 213, record, appears 299 219 S.W. when the same diction ; Corbin, Com.App.1927) notwithstanding provisions Morrow 122 Rule v. ; v. Consolidated Under 553, 641, (1933) McCauley Tex. 62 S.W.2d 649 374. Ry. 265, 475, writers, St. Louis Southwestern Co. of Texas Tex. 304 S.W.2d 157 Affolter v. Hall, Affolter, ; 98 85 (1957) Tex. S.W. 787 389 ; (1905) Johnson, (Tex.Civ.App., Corpus Hunt v. Wagner (1914) ; Christi, 1965, writ). 171 S.W. no preservation prop- writ); no McMorries v. Hudson Sales of business or other Corp., erty impair- (Tex.Civ.App., interests threatened with Paso, 1950, by illegal El writ); ment combinations or other Annotation acts, 715; publication Injunctions A.L.R.2d tortious § C.J.S. merely being 680. an instrument and words incident.” [authorities omitted.] plaintiffs we concede Should pur- See also case notes 16 Texas Law Rev. the intended stating “that correct 111 (1938) and 17 Texas Law to coerce Rev. 97 pose handbilling] and/or [of But, (1939). Sheppard Appellee does not indicate the direct customers restrain by placing has product ever been followed Appellee’s case buying state. eating contaminated fear meat] [of do not buying public,” minds of equity that courts of general rule the an- sought. Again, reach the result of a publication libel enjoin will not supra, from Keefe, is to be found swer considerable criti subjected to has been taken: quotation is which this Pound, See, “Equitable Relief g., cism. e. expressions “The claim Injuries to Per Against Defamation and impact coercive to exercise a intended (1916); sonality,” 29 Harvard law Rev. 640 them remove respondent does *5 case note 27 Texas Law Rev. 723 First Amendment. the reach the from Tucker, supra, The rule announced influence plainly intended to Petitioners more compatible with the seems to be more activities; by their respondent’s conduct Supreme Court expressions of the recent fundamentally different from this not the broad than does of the United States newspaper. See a function of the Cain previously quoted from the language 147, State, supra U.S. Schneider [308 Keefe, supra, is an excellent ex Case. 146, (1939)]; 155 84 L.Ed. 60 S.Ct. opinion is ex ample when the state court Alabama, 88, 60 S. Thornhill 310 U.S. See, Organization For a amined. Keefe v. Peti 736, (1940). L.Ed. 1093 Ct. 236, Austin, Ill.App.2d 253 N.E. Better vigor engaged openly tioners were (Ill.App.1969). 2d 76 of re ously making the aware Those practices. spondent’s real estate system of crimi- an elaborate Texas has them, as the practices were offensive pub- punishment for regulating nal statutes no practices petitioners views and 16, material, Title Ch. lication of libelous long But doubt offensive to others. so 1, 1269, Ann.Penal Code. Art. Vernon’s peaceful, the as the means are communi civil ac- relating to the are statutes There of ac cation standards need meet 88, Art. found in Title tions for libel 419, p. 29 L. ceptability.” at U.S. [402 seq., Ann.Civ.Statutes. 5430 et Vernon’s p. p. Ed.2d at 91 S.Ct. 1578.] 1291, Vernon’s be noted that Art. It is to Code, jury judge Ann.Penal makes in Texas which There is at least one case well as of fact and the law as of the rule, adopt seems to a different Gibraltar may have been a libel intent with which Isbell, Savings Building Ass’n v. 101 S. & published. Galveston, (Tex.Civ.App., W.2d There, recognizing writ). no while noted that there It is likewise to be in general “Equity rule that does not injunctive specific authorizing no statute publication of tervene to restrain the publication of a libel enjoin relief to falsity,” showing of their words on mere the em- be found in our statutes. Under is an the court then mentioned there Tucker, phatic supra (220 language used exception, being holding: such-implied power can 76), S.W. at no "It cases [equity] intervenes those general language be found used by where restraint becomes essential to the legislature in Art. Vernon’s AND Ann.Civ.Statutes, DIRTY only possible source AREA WERE FOUND IN THE SAME CHIPPING. RAILS statutory authorization. AREA WERE FOUND BE IM- TO case, plaintiff allege In this did not even PROPERLY BLOODY AND DIRTY. by handbilling that it had damaged been MEAT PROCESSING MACHINES and sought damages; it made no show- WERE DIRTY. AND THAT IS NOT ing that it had invoked the criminal sanc- ALL. OVER A PERIOD, TEN-MONTH only tions of the relief Penal Code. The MEAT PRODUCTS RANGING FROM sought enjoin was publication further BEEF TENDERLOIN TO WILD RICE of the libelous It statements. was “[a] DRESSING TO FLOOR SWEEPINGS pure injunction suit for is classed as [and] WERE CONDEMNED AS UNFIT FOR an action equitable Rogers v. relief.” HUMAN CONSUMPTION OR OTHER- Co., Daniel Royalty Oil & WISE UNLAWFUL. (1937). It was not an Now, ancilliary employees injunction of Carl’s Meat sought by which was plaintiff. Company in Provision Dallas have been Telegraph Southwestern Tele- phone forced on Smithdeal, company. strike As Co. v. Tex. result, products S.W. 1049 now sold Carl’s Meats Company being Provision are not
It processed trained, follows from what has been said experienced the well opinion we are of the employees that the trial past, who have done so possess court did not grant but stop-gap employees scab who do equitable sought by relief not have the experience same level of only sought since the regular relief employee. violative right speech. defendant’s of freedom of BENEFIT, FOR YOUR PERSONAL temporary injunction heretofore THAT, WE URGE IF YOU ENTER *6 granted is dissolved and the cause is dis THIS RESTAURANT (CAFETERIA) missed, however, without prejudice, to EAT, REQUEST TO YOU THAT YOU plaintiff’s rights, any, if pursue to their BE SERVED MEAT OR MEAT PROD- remedy in damages. Perkins v. United UCTS FROM SOME SUPPLIER Fidelity States Guaranty Co., & supra (299 OTHER THAN CARL’S MEAT & PRO- ; at 219) S.W. State, Pearson v. 159 Tex. VISION COMPANY. request you not enter do not (cafeteria) this restaurant patronize or
APPENDIX Bobby Nelson B. /s/ TO THE PUBLIC! (CAFETERIA) THIS RESTAURANT STEPHENSON, (dissenting). Justice IN HAS THE PAST PURCHASED MEAT AND MEAT PRODUCTS FROM majority The dissent. respectfully I CO., CARL’S AND MEAT PROVISION this premise based is opinion DALLAS, TEXAS. MEAT CARL’S defendants’ violates injunction temporary HAS, AND RE- PROVISION CO. As’ free communica- and speech free right CENTLY AS THE THREE LAST Amendment First guaranteed tions MONTHS, BEEN BY FOUND THE States the United to the Constitution of TEXAS STATE HEALTH DEPART- Constitution I Article Section MENT TO BE MEAT rely PRODUCING on majority Texas. the State of PRODUCTS UNDER UNSATISFAC- 335, 220 S.W. Tucker, 110 Tex. Ex TORY. UNSANITARY CONDITIONS. position of their support FOR EXAMPLE, WALLS AND CEIL- indicates first which ING IN THE MEAT PROCESSING he anything say is free person that a person another, dispute, about another and the even a labor unless
wants to remedy right language denial of the there be will be is not the evidence speak, intimidating for used is appropriate penalties but what which coercive wrongfully However, [emphasis spoken. the last character." supplied] paragraph opinion of the Tucker makes that defendants’ actions have concluded injunctive clear that un- relief available contrary both unlawful circumstances, paragraph der certain such policy protection lost their therefore reading as follows: guaranty under the constitutional of free V.A.C.S.,
“Equity protect speech. 5154f, provides the exercise Article among rights things and contractual other that it is natural from unlawful engage or labor union to attempts terference at intimidation may picketing secondary boycott. coercion. or a Those Verbal or written threats do, 5154f, terms are defined in 2 d they assume that Article character. When Sec. conduct, amount or threatened e as follows: conduct, may prop- and for that reason ‘secondary picketing’ “d. shall The term erly sort, be restrained. Cases of that establishing picket mean the act of or nature, or analogous are not to be pickets premises any at or near the confounded with this one.” S.W. employer dispute, no labor as that where [emphasis 76) supplied] Act, term is defined this exists be- opinion fifty employer employees. The Tucker tween such years is some his and. old at the writing opinion, time of this but ‘secondary boycott’ “e. The term shall it has consistently been followed combination, any plan, agreement include Supreme Court of this state to this date. compact or entered into concerted Cain, A opinion well written Brogden persons action two or more cause Cain, Etc., v. Local Inc. Union No. injury damages any person, firm 942 (1956), re- or corporation for whom views both the federal and cases state employees, by point and relates proposition, in the face of the same contention made labor Withholding patronage, “(1) present case, as follows: intercourse business other beneficial corporation; person, firm or “It is now well peaceful settled that protection loses its under the *7 guaranty
constitutional
firm or
speech
person,
of free
if
Picketing such
“(2)
one of
purposes
its
contrary
is
public
to
corporation; or
policy.” (285
p.
at
946) [empha-
S.W.2d
handle, install,
or
use
Refusing to
“(3)
sis
the court]
supplies of
equipment or
work on the
corporation; or
firm or
person,
in Tucker is reaffirmed
such
law stated
the
in Dallas General
fomenting a strike
Instigating
“(4)
or
Drivers,
Inc.,
Dallas,
Wamix,
of
Etc. v.
corporation;
against
person, firm or
such
156 Tex.
S.W.2d
as follows:
to
attempting
Interfering
with
“(5)
Tucker,
“In Ex
commerce; or
of
flow
the free
prevent
this Court committed itself
S.W.
causing
means
By any other
emphatically
proposition the
“(6)
to the
with
employer
an
right
speak
is
cause
attempting
of one to
ill of another
to
to
dispute
a labor
protected
have
Rights,
Bill of
the
Sec.
whom
an em-
injury to
Constitution,
damage or
of Article
of the State
flict
labor
party to
not a
and
power
ployer
that a
has no
who
court
control
by injunction
dispute.”
person says of
what one
employer
Case,
the
hope
dis
that this
induce
supra,
the Cain
court
will
In
the
Union,
employees’
in
demands.’
Carpenters
give
to his
cussed
Etc.
Joiners
Cafe,
Electrical
International Brotherhood
(Tex.
v. Ritter’s
violation of the incidental, purely employers is neutral statutes, state, as expressed rights balancing of relative and (b) suppress conspiracies in re- trusts against harm parties all affected said, may straint of trade. It also be parties to the other which would result least, however, rest, at part re- permitting and to the ground on practices enjoined hearing straining picketing. In a public policy violative temporary injunction these matters this state against secondary boycotts and ordinarily address themselves picketing employer an with whom trial judge sound discretion of the dispute existed order to force him to only rarely may the issue be decided join with union in applying coercive concludes, question. a law If the Court pressure independent on an employer force, probative evidence of dispute or, with whom exist, did al- purpose the real at a sec- ternatively, to breach a break contract or ondary pres- situs is to exert economic off employ- business relations with such on a sure neutral and it has that effect er.” 948-949) there will be no need to consider *8 second p. 884) factor.” S.W.2d at Texas Judge Case, supra, quoting after Wamix in the the rules laid down Applying Learned Hand as follows: before situation Case factual to the Wamix intent good a faith “Judge us, Hand has defined must consider Learned handbilling ‘The the cafeteria secondary union in boycott these words: of the pres- exerting gravamen boycott is and restaurant customers of a bear, such cafeterias upon employer upon the its sure owners sanctions influence the dispute, but restaurants to party who is a alone union, must and we dealings in its with the party has no con- some third who rights of all of the relative compel cern in aim is to him balance it. Its defend- concluded parties affected. have stop employer business with the contrary to ants’ actions in this case are
public policy. this is
It should also be considered that appeal granting- tempo-
an from an order
rary injunction preserve quo the status hearing permanent
pending a final circumstances,
injunction. it is Under judgment
clear that the trial court’s only
be reversed issuance of the where the
writ was a clear abuse discretion.
Texas Foundries v. International Moulders Wkrs.,
& F.
(1952). Transport ofCo. Texas v. Robert-
son Transports, 152 Tex. my opinion, In the trial court
did not abuse its in granting discretion
temporary injunction.
STEPHENSON, J., dissented to denial rehearing.
Terry L. PRICKETT and Carl M.
Prickett, Appellants, ALLEN, Bankruptcy
Neal R. Trustee in Inc., Bankrupt, General, Data Appellee.
No. 4507. Appeals Texas,
Court of Civil
Eastland. 17, 1971.
Dec.
Sanders, Baker, D. Ronald Miller & Amarillo, Nickum, appellants. for White, Amarillo, appellee. L. A. *9 COLLINGS, Justice. Allen, bankruptcy trustee
Neal R. brought General, Inc., bankrupt, Data