Lead Opinion
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
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 advеrtising 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.
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.
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.
The defendants contend that certain Massachusetts cases treat wilful disobedience of an injunction as an essential element of a civil contempt. See Alves v.
Decree affirmed with costs of appeal.
Notes
No question is now presented concerning what proof of a violation of an injunction is required to constitute criminal contеmpt. Compare Telegram Newspaper Co. v. Commonwealth,
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.
For discussion of considerations, in part discretionary, with respect to particular remedial sanctions by way of civil contempt, see Union Tool Co. v. Wilson,
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.
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.
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 аnother which they would be reluctant to impose upon “a natural person . . . who can suffer imprisonment or ignominy.” See Commonwealth v. Beneficial Fin. Co.,
Concurrence Opinion
(concurring) The majority opinion makes the law of the Commonwealth uncertain in an
The defendants, eight corporations charged with civil contempt for disobeying an. injunction, defend on the ground that their conduct was not a “wilful disobedience of the court’s decree” (emphasis supplied). As authority for their contention, they cite the case of Massachusetts Commn. Against Discrimination v. Wattendorf,
I must respectfully disagree with the majority in their position. As I understand the law of civil contempt, there is but one rule which applies without regard to whether the particular defendant is an individual, a corporation, or some other entity. The rule, simply stated, is that absence of wilfulness will not purge a civil contempt. Inasmuch as the Wattendorf case is remarkably similar to the instant case on the facts, the majority have, in my view, created serious and needless uncertainty in not reviewing the Wattendorf holding in the light of today’s result.
1. Authority and sound principle lead me to- reject the distinction which the majority appear to make between corporations and individuals. To my knowledge, no modern court has stated, as the majority now seem to suggest, that natural persons and corporations may be subject to different rules of law in adjudications of civil contempt.
The majority cite various civil contempt cases in an attempt to support their position. The majority fail to note, however, that in each case involving a corporation there were individual defendants who were subject to the same legal principles as the corporate defendant named in the title of the case. McComb v. Jacksonville Paper Co.
In McComb v. Jacksonville Paper Co., supra, the case upon which the majority place most reliance, the Supreme Court reversed a lower court ruling that civil contempt requires “a ‘wilful’ violation of a decree”
The Federal judiciary has uniformly treated the McComb doctrine as applicable without regard to whether the charge of civil contempt runs against a natural or an artificial person. In the most recent Federal case, Doe v. General Hosp. of the District of Columbia,
As far as I have been able to ascertain, whenever an individual, a corporation, оr some other entity has made the contention that intent is an element of civil contempt, it has been rejected. Prior to the McComb case, the leading American case was Thompson v. Pennsylvania R.R. 48 N. J. Eq. 105, involving an adjudication of civil contempt against a superintendent of a division of the Pennsylvania Railroad. As his principal defence, the superintendent maintained that he could not be held in contempt unless the court found “a willful and intentional breach of the injunction.” At 107. Vice Chancellor Pitney of the Court of Chancery rejected the argument, concluding as follows: “[Breach of an injunction] consists in doing the forbidden thing, and not in the intention with which it is done.” At 109.
If the matter is considered on principle and apart from authority, the conclusion is the same. The rule that intent is not an element of civil contempt is a.direct consequence of the separate functions of criminal and civil contempt. Since the purpose of civil, аs distinguished from criminal, contempt is primarily remedial and not punitive, there is no requirement that the complainant show an intention on the part of the defendant to defy the court or to degrade its process. It is enough if he shows that the defendant violated the terms of an unambiguous decree. McComb v. Jacksonville Paper Co.
It is totally inconceivable that the liability of a person committing a civil contempt should depend upon whether he is an individual, a corporation, or an unincorporated association such as a labor union. Courts have consistently refused to treat such status as in any way affecting the responsibility of a party who violates a court order. See generally 17 C. J. S., Contempt, § § 33-34. As to corporations, see Jones v. Boston Mill Corp.
2. There is no doubt in my mind that the case of Godard v. Babson-Dow Mfg. Co.
3. Having stated the rule which should apply here, I now consider the bearing of today’s decision upon Mas
The defendants in the instant case were еnjoined from using the words “Mammoth Mart” for any purpose in connection with any business owned or operated by them in the city of Worcester unless some distinguishing words were interposed between “Mammoth” and “Mart.” The defendants violated the injunction through the publication of nonconforming advertisements in the Worcester Evening Gazette on December 5, 12 and 19, 1969. To support their contention that the violation was not wilful, the defendants allege that the evidence shows the following: Irving Getz was the corporate officer in the defendant corporations who was responsible for ensuring compliance with the injunction. On behalf of the defendants, Getz instructed the various employees and an agent of the corporations to publish only advertisements conforming to the terms of the court’s decree. Among those so instructed were all personnel in the defendants’ advertising department, the manager of their Worcester store, and the advertising representative of the Worcester paper which published their advertisements. Despite these precautions, and without the corporate officer’s knowledge, the violation occurred. The plaintiffs did not offer any evidence which seriously contradicted this version of the events.
In the Wattendorf case, the respondent was the sole proprietor of a real estate business with an office in Dorchester for the sale and rental of residential properties. His sales manager in charge of the Dorchester office was one Coleman. The petitioner, Massachusetts Commission Against Discrimination, appealed from a decree dismissing its petition to have the respondent adjudged in contempt of court for violation of a decree which ordered him (1) to “cease and desist and in the future refrain from making any inquiry, distinction, discrimination or restriction on account of color or race in the
A comparison thus shows no significant differences between the facts in this case and those in the Wattendorf case. The similarities, on the other hand, are striking : in both cases, an employer instructed his employees to obey the court’s order but, in spite of this precaution, a violation occurred without the knowledge or participation of the employer. In each instance, the complainant directed his petition to adjudge in civil contempt against the employer rather than against the employee or employees actually violating the court’s order. While the majority today find no error in the decree adjudging the present defendants in civil contempt, this court in the Wattendorf case, under similar facts, upheld dismissal of the contempt petition on the basis of the Superior Court’s ruling that the petitioner had not shown “a wilful violation.” The court concluded (at 317) : “There was no abuse of discretion, and without that
The Wattendorf case can be distinguished only on the basis that the respondent Wattendorf was doing business as an individual while the defendants in the present case are corporate entities. As I have shown, however, this difference can have no legal significance. Inasmuch as there is only one rule for individuals and corporations, the conclusion is inescapable that the Wattendorf case is at odds with today’s result. The record in the Wattendorf case bears out this view. After stating the trial judge’s subsidiary findings, this court held conclusive the judge’s ultimate finding of fact: “I do not find that Wattendorf intentionally or personally violated the decree by discriminating among applicants for housing on the basis of color or race. The evidence falls short of proof of The clear and undoubted disobedience which is required for the foundation of a petition for contempt’” (citations omitted). Since the individual whо actually committed the discrimination was the defendant’s sales manager and was acting within the scope of his employment, the defendant was unquestion
To the extent that the Wattendorf case stands for this proposition, it is plainly contrary to the great weight of authority and to the rule which we announced in Godard v. Babson-Dow Mfg. Co.
Such a course would also be based on logic and sound reasoning. It is irrational to argue that an employer, whether incorporated or unincorporated, should be able to avoid his responsibility for compliance with an injunction merely by issuing instructions to his employees. Of what legal consequence is it that Jay’s Stores, Inc., the principal defendant in this case, is a corporation rather than a natural person? Or that the respondent in the Wattendorf case сonducted his business as a sole proprietorship rather than as a corporation? Moreover, regardless of what legal form a business takes, the argument that the responsible individual or corporation should not be held in contempt where an employee
4. I fully recognize that “important policy considerations militate in favor of continuity and predictability in the law.” Boys Mkts. Inc. v. Retail Clerks Union, Local 770,
I agree with the majority, but not for the reason they assign, that we need not review Alves v. Braintree,
In McComb v. Jacksonville Paper Co. all parties appealed from a decision of the Fifth Circuit affirming a decree of the District Court. At 189-190. The identity of the parties is apparent from the decision in the Court of Appeals. Jacksonville Paper Co. v. McComb,
See, respectively, Lustgarten v. Felt & Tarrant Mfg. Co.
Even under Federal standards prevailing prior to McComb v. Jacksonville Paper Co. the ruling of the lower court was aberrational. See Wartman v. Wartman,
The clear and natural interpretation of McComb v. Jacksonville Paper Co.
In addition to Doe v. General Hosp. of the District of Columbia, see National Labor Relations Bd. v. Lawley,
The reasoning of the Vice Chancellor in Thompson v. Pennsylvania R. R. was, in full, as follows (at 108-109) : “[I]f A be ordered to pay a sum of money to B, and, being able so to do, fails to make the payment, of what сonsequence is it to B what may have been the motive which induced the failure, or what may have been the state of A’s mind toward the court? And if B brings the breach of its order to the attention of the court, and asks that its process do issue against A therefor, must his application be refused if A can satisfy the court that he entertained no disregard for the court, and did not mean to set its order at defiance? So in the case of a nuisance: if A be enjoined from so using a dam on his land as to flood B’s land, and fails to observe the injunction, and B’s land is flooded thereby, in any and all such cases, it seems to me that it is no answer to the complaint of the injured party to say that the party inflicting the injury meant no disrespect to the court. The injury sufferеd by the complaining party is neither increased nor diminished, nor in any way affected by the state of mind towards the court of the party inflicting the injury; and the breach of the injunction consists in doing the forbidden thing, and not in the intention with which it is done.”
See also Dobbs, Contempt of Court: A Survey, 56 Cornell L. Rev. 183, 220; notes, 32 Ind. L. J. 514, 516, 520-524; comments, 48 Mich. L. Rev. 860, 869; 33 U. of Chicago L. Rev. 120, 123-125. Cf. High on Injunctions (4th ed.) § 1418.
As to labor unions, see United. States v. United Mine Workers of Am.
The respondents in the Godard case wished to show good faith on their part through evidence that the petitioner had rejected an offer by the respondents to move his machinery to a part of his premises where the nuisance maintained by the respondents would not interfere with his business. At 349.
Compare Globe Newspaper Co. v. Commonwealth,
This conclusion necessarily appears from an examination of the original record in Massachusetts Commn. Against Discrimination v. Wattendorf,
Even apart from the issue presently before us, Massachusetts Commn. Against Discrimination v. Wattendorf should be overruled in so far as it takes the view that a trial judge has discretion whether to hold a party in civil contempt once a violation of an injunction has been established. The court was clearly in error. Admittedly, there is an area of discretion as to whether, in the first instance, injunctive relief will be granted. Once an injunction has issued, however, the correct rule is that “legal discretion . . . does not extend to a refusal to apply well-settlеd principles of law to a conceded state of facts [in a civil contempt proceeding brought to enforce the injunction].” Discretion is limited to the factual determination whether the injunction has been violated and to what extent the petitioner was injured and requires relief. Union Tool Co. v. Wilson,
See also Telling v. Bellows-Claude Neon Co.
My conclusion that Wattendorf and other unincorporated entities must be held responsible for the conduct of their employees is not based necessarily on the doctrine of respondeat superior but rather on a rule that the obligation to obey a court order is nondelegable but remains at all times the responsibility of the person to whom the order has been directed. See Singer Mfg. Co. v. Sun Vacuum Stores, Inc.