One: In the majority view it is stated: "Thus stripped of all legal terminology, all that the Union did by distributing the circulars, in manner already stated, was to bring its commodity, if so it may be characterized, or its concept of the proper relationship between employer and employe to the buying public who had and has a real social and economic concern in the resultant consequences flowing from the laboring practices followed in complainant's factory."
My point of difference with this statement is that there is nothing whatsoever before us as to "the laboring practices followed in complainant's factory," except the admitted situation that none of the employes are members of the defendant Union nor of any other union and that there is neither a strike nor a dispute of any kind existing between these employes and their employer. Nor does the circular, in terms, describe the laboring practices followed in complainant's factory, except by the innuendo that the soft drinks made in *Page 447 the Kerns factory are made by labor not skilled in the industry and not working under union conditions, wages and hours. The circular, as it appears in the state of case, is made up as follows:
"TO ORGANIZED LABOR FRIENDS and SYMPATHIZERS E.L. KERNS BEVERAGES are NON-UNION MADE The Soft Drink Workers Local 26, of Trenton, will appreciate your PATRONAGE OF SOFT DRINKS MADE IN TRENTON, IN UNION SHOPS, by Skilled labor, working UNDER UNION CONDITIONS, WAGES AND HOURS. [Italics mine.] I.U. of U.B.F.C.S.D. W. OF AMERICA, Local 26 (over) DEMAND BEVERAGES MADE BY THESE CONCERNS UNION MADE COCA COLA BOTTLING COMPANY MERCER BEVERAGES O.K. BOTTLING COMPANY — Made in Trenton —"
The effect of including the italicized language in the circular is to produce upon the minds of reasonable persons, construing the same in connection with other parts of the circular, the understanding that the laboring practices followed in complainant's factory are contrary to and below the labor union standards, and hence, the public is invited not to patronize Kerns products.
The right to freely publish the truth of all matters of public concern cannot be extended to mean a right, by innuendo, to publish an untruth, and thereby bring harm to the person published against. Where, as here, a comparison of labor standards is invited, it is against truth to set forth the standard *Page 448 of the publisher of the circular and, by omitting from the circular the standard of the one published against, to thereby condemn him by innuendo.
Two: The learned court below found that:
"Complainant's business has been diminished and will be greatly diminished and irreparably damaged, if not completely destroyed, as the result of the distribution of these circulars.
"It is the obvious and necessary conclusion from the facts set forth that defendants' purpose in distributing the circulars is to diminish complainant's business in order to force complainant to sign the proposed contract with defendant.
"It seems clear that the determination in Kitty Kelly ShoeCorp. v. United Retail, c., 125 N.J. Eq. 250, is controlling and dispositive of the present case. * * *"
It is upon this basis, as I understand it, that the court below relied upon the Kitty Kelly Case. The fact of damage having been found, the court was correct, it seems to me, in relying upon this authority, based as it is upon the decision of this court in Evening Times Printing and Publishing Co. v. AmericanNewspaper Guild, 124 N.J. Eq. 71 (at p. 74), where, citingScherman v. Stern, 93 N.J. Eq. 626, Mr. Justice Case, speaking for this court, said, "Acts destroying a complainant's business, custom and profits do an irreparable injury and authorize the issuance of a preliminary injunction."
Three: It is to be noted that the distribution of circulars in this case occurred shortly after respondent refused the demand of appellants that respondent, by contract with appellant Union, acknowledge and recognize the Union as the appropriate bargaining union on behalf of the employes of respondent with respect to wages, hours and other working conditions, these employes having no relationship whatsoever with the Union. There can be no doubt but that the object of the distribution of the circulars was to compel respondent to sign this contract.
I do not understand how the Union can assume to act as the agent of these employes, nor in what manner the employes would be bound thereby. There is no evidence whatsoever that the Union was clothed with such power by those whom it assumed to represent, nor is any consent to the relationship *Page 449 by the would-be principal, actual, implied or by operation of law, to be spelled out of the case. I have always understood that the relation of principal and agent, as a general proposition, arose out of agreement between the parties and the appointment of agency flowed from the principal and not vice versa. The effect of the majority opinion in this case, as I view it, is to put a stamp of approval on this novel procedure.
The decree appealed from should be affirmed.
For affirmance — PARKER, CASE, PORTER, DEAR, RAFFERTY, JJ. 5.
For reversal — THE CHIEF-JUSTICE, DONGES, HEHER, PERSKIE, WELLS, WOLFSKEIL, HAGUE, JJ. 7. *Page 450