Appellant, on application for rehearing, argues that we have ruled contrary to Ex parte McCleney, supra, in our original opinion. We do not agree that we have so ruled.
We explicitly stated in our opinion that we were bound by the decision of Ex parte McCleney, supra. We attempted to point out that the burden or methods of proving the violence exception to Tit. 26, *Page 228 § 214(A), listed in McCleney were not intended to be required conjunctively. Appellant, on rehearing, states that we held them to be alternative. We did not so hold. We merely stated that if it were shown that a claimant's sole reason for failing to cross a picket line was a well founded and reasonable apprehension of violence to his person it would be totally superfluous and unnecessary to prove that he was (1) willing to cross a peaceful picket line and, (2) that he made a reasonable attempt to cross such picket line. We further indicated that proof of the latter two matters could only be relevant in an effort or means tending to prove the first. If it is shown by the evidence that a claimant's refusal to work is solely because of a well founded and reasonable apprehension of violence to his person, the exception to the words of the statute is proved. Nothing else need be shown. We believe this to be the holding in McCleney.
Appellant further contends we have departed fromMcCleney in allowing admission of evidence as to violence occurring prior to the strike, particularly as to violence occurring in a similar strike in 1962, and prior to the issuance of the injunction. Quoting from McCleney as follows:
"Evidence of violence which occurred prior to the issuance of the injunction alone is not sufficient to support a claim of fear of violence as the basis for not crossing a picket line after the issuance of the injunction." (286 Ala. at page 294, 239 So.2d at page 317)
Appellant contends that evidence of violence prior to issuance of an injunction is not admissible. Close reading discloses that appellant's contention is not supported by the quotation. It states that such evidence alone is insufficient to prove fear of personal violence.
Thus we are brought to appellant's contention that evidence of violence occurring after a failure to cross the picket line or after issuance of an injunction is inadmissible under the holding of McCleney. Appellant again quotes from McCleney as follows:
"And the fact that violence erupted after these claimants had refused to cross the picket line cannot bolster their claim for benefits. This was settled in Badgett v. Department of Industrial Relations, 30 Ala. App. 457, 10 So.2d 872, . . ." (286 Ala. at pages 292 and 293, 239 So.2d at page 316)
Our view of this statement from McCleney, upon consideration of the case as a whole, is that it is limited to the facts of that particular case. We have carefully read Badgett v. Department of Industrial Relations, supra, referred to in the above quotation and we find nothing in that case contrary to our view. In fact, we are unable to find anything in Badgett relating to the issue under consideration here.
The court, in McCleney, subsequent to the statements quoted by appellant, said the following:
"We do not hold that evidence of violence is inadmissible after the issuance of an injunction, but that the burden is still on the claimant to show that he was willing to cross the picket line, that he attempted to or that the sole reason for his failure to return to work was because of a real and genuine fear of personal violence." (286 Ala. at page 294, 239 So.2d at page 317)
It certainly is true that violence occurring after a refusal to cross a picket line may not be substantive evidence of the reason for an initial refusal, but there was a continuing refusal involved here. The claim for benefits extend over several weeks. The refusal to cross picket lines after March 24, the date of the incidents with the trucks, surely could be supported by evidence of such incidents. We also think evidence of such incidents, though occurring a few hours after some of the claimants were directed to return to work, was admissible as a supporting basis of the existence of a well founded and reasonable *Page 229 fear of personal violence as of the time of refusal.
Opinion extended and application for rehearing overruled.
BRADLEY, J., concurs.