E. H. Renzel Co. v. Ware-Housemen's Union I. L. A. 38-44

EDMONDS, J.

At the suit of the respondent, a corporation engaged in the wholesale grocery business, the appellants were enjoined from picketing its place of business, and, also, from conducting a secondary boycott by representing to its customers that it “is unfair to organized labor”.

Upon the filing of the verified complaint, a temporary restraining order issued and when the matter came on for hearing in response to an order to show cause, testimony was offered and received from both sides. This procedure was apparently by agreement that the facts determinative of the right to an injunction

pendente lite

should be presented in this way rather than by affidavit. The complaint was also considered as part of the respondent’s evidence, but it is settled law that where this practice is followed, the pleading “takes the place of an affidavit and must be treated as such; and the facts stated must stand the.test to which oral testimony would be subjected. Averments which are but con

[371]

elusions of law are not competent testimony, though they might stand as matter of pleading. Unless the statement, in the nature of a conclusion, is supported by the facts or circumstances on which it rests, it is insufficient to sustain an application for injunction”.

(Willis

v.

Lauridson,

161 Cal. 106, 108 [118 Pac. 530].)

Briefly stated, the following facts were shown by the complaint and the testimony introduced at the hearing:

At the time the controversy between the parties arose, the respondent maintained warehouses for the storage of merchandise and had about 45 employees, 23 of whom were ware-housemen and teamsters and the remainder executives, clerical workers and salesmen. Their average wage was about $29 for a 45-hour week, plus a yearly bonus equal to about three weeks’ salary. There was no dispute between respondent and its employees concerning wages or working conditions.