Full opinion text
WALKER, Justice. Appellees were plaintiffs in the trial court and appellants were defendants. Plaintiffs are: (1) Guy A. Thompson, trustee of the Beaumont, Sour Lake & Western Railway Company (a Texas railroad corporation) acting under appointment by the United States District Court for the Eastern District of Missouri; and (2) Missouri Pacific Freight Transport' Company, a Texas corporation, operating as a motor •carrier over the public highways. Defendants are: (1) the members (sued as a class) of Local Union 393 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America; (2) Lee Cascio and R. B. Bunch, individually and as members and officers of said Local Union 393; and (3) four named members of said Local Union. Another party to the controversy out of which this suit arose is Mrs. C. T. Heisig, a feme sole, who conducts a local cartage ánd warehouse business in the city of Beaumont, Texas, under the assumed name of Heisig Transfer & Storage Company. This business is operated by Mrs. Heisig’s son-in-law, John Price, who holds the position of manager of the Heisig Transfer & Storage Company. For convenience, we shall hereafter identify Guy A. Thompson, the trustee, with the B. S. L. & W. Ry. Co., and shall refer to both as Railway. Plaintiff Missouri Pacific Freight Transport Company is referred to hereafter as Transport, and the members of Local Union 393 as Union. Heisig Transfer & Storage Company is referred to as Heisig. Plaintiffs brought this suit to abate, by injunction, a picket line which Union had established at plaintiffs’ freight depot in Beaumont. The original petition ‘was filed by Transport. This pleading was amended, and Railway became a plaintiff. Plaintiffs prayed for’ a. temporary injunction, restraining the picketing of their depot; this prayer was heard by the trial court and after much proof had been introduced by the er much proof had 'been introduced by the various parties, the injunction was granted It is. not involved on this appeal, but the parties agreed that the merits- of the cause should be adjudicated upon the evidence-admitted at this hearing, and on this proof depends the final decree rendered in this, cause. After the temporary injunction issued, plaintiffs again amended their petition, and the cause was determined under this pleading and that of the defendants, to which we refer below. Plaintiffs alleged in their final amendment that each was a common carrier for hire, Railway operating in both interstate and intrastate commerce and Transport in intrastate commerce only; that Railway owned and used the aforesaid freight depot, located at 540 Neches Street in Beaumont, Texas, and that Transport also used this depot,' under and by virtue of a contract with Railway; that freight carried, or to be carried, by each plaintiff was deposited at this depot and that this depot constituted the only such place of deposit each plaintiff had in Beaumont. The allegations make it plain that 'plaintiffs’ free use of this depot was- essential to the conduct- of plaintiffs’ business in the city of Beaumont. Plaintiffs alleged further that a labor dispute existed between Heisig and Union, to which they were not parties; that there is no dispute between plaintiffs and their own employees; that all of Railway’s employees belong to labor unions other than defendant Union; that many of Transport’s employees belong to unions forming a part of the organization with which defendant Union is affiliated, which have'been recognized as the collective bargaining agents of said employees, and with which Transport has a contract yet in force; and that no labor' dispute exists between plaintiffs ajad defendant Union. Plaintiffs alleged further that each had a contract with Heisig, made before Union’s dispute with Heisig arose and .which was yet in force, under which Heisig agreed to and did “pick up— freight from said depot, and deliver (it) to the consignee thereof in Beaumont, Texas, and pick-up local small lots of freight in Beaumont — and deliver (it) to the aforesaid — depot”; that under this contract Hei-sig was an “independent contractor”; that “Plaintiffs have no right to control any of the operations” of Heisig and that plaintiffs had no “control over the employment, or the hiring and firing of (Heisig’s employees) or the condition of their employment, or the wages to be paid them”, and that “Plaintiffs are not capable of giving to the Defendants — any relief in their labor dispute” with Heisig. Nevertheless, alleged plaintiffs, defendants, knowing all of these things and knowing too that Transport’s employees belonging to the labor organization with which defendant Union was affiliated had the right under their contract with Transport to refuse to cross a picket line, had established the aforesaid picket line at plaintiffs’ said freight depot; that Transport’s truck drivers and the drivers of many other persons, including freight consignees had refused to cross said picket line; and that plaintiffs’ business had been greatly diminished and interfered with as a result, to plaintiffs’ damage, all as defendants had intended. Plaintiffs alleged that the depot was separated from Pleisig’s place of business by a distance of ten city blocks, and that Heisig had no office, kept no records, and had no place of business at said freight depot. Plaintiffs alleged further that the picketing of the freight depot was unlawful and that it should have been restrained because: (a) Defendants’ purpose in establishing this picket line at the freight depot was to coerce plaintiffs, through injury to their business, into demanding of Heisig (on pain of having plaintiffs terminate Heisig’s contract if Heisig refused this demand) that Heisig sign a contract with Union which recognized Union as the exclusive bargaining agency for Heisig’s employees; (b) such picketing, under the circumstances of this case, was secondary picketing and violated the anti-trust laws of Texas, and (c) violated the provisions of Article 5154f of Vernon’s Texas Civil Statutes 1948. Plaintiffs alleged that defendants were unable to respond in damages and that their damages were irreparable, and they prayed that the picketing be enjoined. Defendants filed in response a plea in abatement and an answer. They plead in abatement that the parties to this suit were in interstate commerce, were governed by the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq., a Federal statute, and that under this Act, only the National Labor Relations Board, and not the plaintiffs, had any right to injunctive relief, if the facts would support such relief. Defendants’ answer contained various denials and admissions which need not be set out; and specially alleged that Hei-sig’s truck drivers had selected Union as their agent for the purposes of collective bargaining, but that Heisig had wrongfully refused to recognize Heisig as such agent; that Heisig’s employees had therefore struck against Heisig, and the picketing complained of. by plaintiffs, in which the pickets carried placards stating that employees of Heisig were on strike, was a lawful incident of, and a peaceable and truthful publication of matters concerning said strike, confined to the public street and involving no trespass upon the property of others. Defendants further alleged that “Plaintiffs, especially the — Missouri Pacific Transport Company and the Heisig Transfer & Storage Company, have constituted themselves a single economic unit, with a single place of operation, inseparable and inaccessible to either without approaching both, and by virtue thereof Defendants allege that the said docks at (the freight depot) is the site of their employment so that the expression of free speech by means of picket signs in the vicinity thereof is privileged as being at the site of the labor dispute.” Defendants alleged further: “Defendants do not assert any intention of maintaining pickets at or near the premises at S40 Neches Street except insofar as there occurs at said location, business operations by their employer, Heisig Transfer & Storage Company and hereby in open court judicially acknowledge • and assert their intent to withdraw the said pickets instantly upon the withdrawal by the said Heisig Transfer & Storage Company from the said location.” Defendants invoked the rights of free speech, free assembly and immunity from involuntary servitude, as guaranteed to them by the Constitutions of the United States and of Texas. They plead further that the rights of the parties were governed by the Labor Management Relations Act of 1947. As heretofore stated, when the merits of the cause were tried, the parties introduced again the proof which they had adduced at the hearing of plaintiffs’ prayer for a temporary injunction; and on this proof, the trial court enjoined defendants from picketing “at, near and in the vicinity of” the aforesaid freight depot “and from exhibiting pickets or picket signs at, near or in the vicinity of the entrances of said freight depot and premises”, and from doing other matters which need not be set out because these matters were only incidents of the picketing restrained. This injunction was made “permanent during such-time that the enjoined actions are done or threatened by reason of any labor dispute— between (Union) and Heisig — , during such —time as there exists no controversy between (Railway) and/or (Transport) and the majority of the employees of either, concerning wages, hours or conditions of employment.” Defendants have appealed from this decree. Conclusions of Fact We make the following conclusions of fact as a basis for our judgment. I. The controversy out of which this suit arose centers around the building and premises in Beaumont, Texas, known as the Missouri Pacific Freight Depot. This property is owned by Railway, but it is used by Transport, as well as by Railway, as a place to receive and deposit temporarily freight which plaintiffs bring into or carry out of Beaumont. It is not a storage warehouse. We infer that plaintiffs have no other place in Beaumont where they can transact this part of their business. Railway maintains a small staff of employees who occupy offices in this building, established for their use, but most of the structure is used as a place of deposit for plaintiffs’ freight. A part of the building, at the rear, is rented to the Universal Carloading Company, a concern which is not involved in the present controversy; but with this exception, the building and premises are in Railway’s possession and are under Railway’s control. The depot itself is a long, narrow, rectangular structure. The front of this building faces, adjoins and opens upon Neches Street, and the building extends back from Neches Street a considerable distance. It is sometimes referred to in the proof as 540 Neches Street. The front may be said to constitute the eastern end of the building. Three of Railway’s tracks extend along the northern side of the building either in, or adjacent to, a public street, and these tracks end at a line which is an extension of the line of the front of the depot. Two other tracks of Railway’s run up toward the rear of the depot from the west, and end a short distance west of the rear, that is, the western end of the building. Freight comes into the depot from cars moved on to these tracks, probably the three northern tracks. To remove freight from or to deposit freight in this depot, trucks approach the building either from the south along Trinity Street, a dead end street one-half block long which ends opposite the rear of the depot, or else approach along an alley which extends along the southern side of the depot and which intersects Trinity Street; the front entrance of this alley is on Neches Street. Carload lot shipments of freight are left in Railway’s cars, which are stored on the tracks referred to above, apparently more often on the tracks which stop just west of the depot. Access to cars upon these tracks may be had over ways open to the public. As stated, the northern tracks are in or adjacent to a public street and the tracks leading to the rear of the depot adjoin a way which Railway had paved with shells. Carload lot shipments were taken by Beaumont consignees directly from these cars into their own vehicles. Shipments of less than a car load in size were taken into the depot, either from Railway’s cars or from Transport’s trucks, and were removed from the depot (at least in the very great majority of instances) in trucks which came up to the depot along the alley referred to above or along Trinity Street. Doubtless these two ways were also used by Heisig in delivering freight to the depot as hereinafter related. At some time on Thursday, October 30, 1947, apparently during the morning, Union placed two pickets in the vicinity of the freight depot. One picket walked back and forth along the Neelies Street sidewalk in front of the depot, and .the .other picket walked back and forth across the' opening of Trinity Street immediately south of the rear of the depot. These two pickets thus crossed both of the truck approaches to the depot. If a truck did come up to the rear of the depot .from the west' over the way along Railway’s tracks, this truck would have evidently come into the presence of the picket crossing the opening of Trinity Street, although that picket would not have crossed the path of this truck. However, this way was not often used by trucks, before the present controversy arose, to gain access to the depot (except, perhaps, occasionally), and there is no proof that it has been used as an entrance to the depot since that time. The stations of the pickets did not cross the railroad tracks, and the pickets did not go near those tracks. Railway’s use of the tracks has not been interfered with by the picket lines. These pickets maintained their stations during business hours each day (that is, each business day) subsequent to October, 30th, until the trial court granted plaintiffs a temporary injunction 9 days -later, on Novetnber 8, 1947. These pickets were emplaced by Union, acting through Lee Cascio, Union’s Business Agent, as a consequence of and pursuant to-the strike called against Heisig by Union on Tuesday night, October 28, 1947, as related hereinafter. No more than two pickets were on station at any one time (although several members of Union had been appointed by Cascio to serve as pickets when called); and the two pickets were separated by distance of some 500 feet. E-ach carried a placard bearing these words: “Heisig Storage & Transfer Company on Strike, Teamsters’ Local 393, A.F. of L.”; this statement was truthful. Each picket confined his patrol to the public way, namely, within the bounds of Trinity Street and along the Neches Street sidewalk; and the conduct of the pickets has been lawful at all times. The pickets have done nothing more than patrol their stations, -carrying their placards as they walked. Cascio testified: “Before placing the picket line at any point, .these men were notified at that time that 'they were to peacefully picket and not to bring any harm to anyone else across that picket line, or any abuse by language, or anything else.” Further: “The pickets were instructed not to stop and talk to anyone, or to talk with anyone that might approach them. Q. And have they carried out your instructions, so far as you. have been able to see? A. Yes, sir.” He said that the pickets did not block traffic; that “we haven’t attempted to stop anyone from crossing that picket line”; and that the only conversation the pickets had with drivers of trucks not belonging to Heisig wás to say Good morning “and if they would ask us who is on strike we would tell them”. Two of the pickets, Roan and Joseph, confirmed some of Cas-cio’s statements. There' is no competent evidence to the contrary, nor any real effort to dispute Cascio’s statements, and we find that his testimony stated the facts. Heisig - maintained an office and warehouse -at 955 Pearl Street in Beaumont, and this place of business was 10 city blocks distant from plaintiffs’ freight depot. Union also picketed Heisig’s office and warehouse during the time they maintained pickets at the freight depot. II. Union is a voluntary, unincorporat-ecl,-association -of working men, presumably members of the crafts referred to in Union’s title, and is affiliated with and forms a part of an association of similar Unions styled Th.e International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Union’s office seems to be in the city of Beaumont, and Union has approximately 450 members. Lee Cascio is Union’s chief executive officer. He is referred to in the proof as Union’s business representative, and he also holds the office of Secretary & Treasurer of Union. R. B. Bunch is his assistant. III. Beaumont, Sour Lake & Western Railway Company, referred to herein under the term Railway, is a Texas railroad corporation which owns certain railway lines and other properties situated wholly within the State of Texas. The most important element of its lines is a railway between Houston and Beaumont; most'of the freight carried by it moves over this track. It is engaged in both interstate and intrastate commerce; it ■ apparently • carries more goods in interstate than in, intrastate commerce. As stated, the freight depot at Beaumont, about which centers the present controversy, is one of its propt erties. When the proceedings were had in the trial court, Railway was the debtor in cause No. 6935, a proceeding' for the reorganization of■ said company which.was pending in the United States District Court for the Eastern District of Missouri, Eastern Division. Plaintiff Guy A. Thompson was acting in this proceeding as trustee for Railway. IV. Missouri Pacific Freight Transport Company, referred to hereinafter as Transport, is a Texas corporation which, was organized for the purpose of operating, and which was functioning, as a motor carrier of freight, for hire, over public highways of Texas, between certain points upon those highways which were not fully identified in the proof but which include Houston, Beaumont and Orange. Transport’s operations as a carrier were authorized by certificates from'the Texas Railroad Commission and the Interstate Commerce Commission. Transport’s business, however,- is wholly intrastate. There was proof that its carriage of freight in interstate commerce had been enjoined. V. The nature of the 'legal relation between Railway and Transport was not directly proven (Beckley, plaintiffs’ Beaumont Freight Agent, once referred to Transport as a “subsidiary of the railroads”), but the evidence showed conclusively ■ that these two corporations functioned as a unit, intended to provide and actually providing shippers and consignees of freight with the complete and flexible means of transportation which neither plaintiff could provide alone. All interstate shipments and some intrastate shipments were brought into and were carried out of Beaumont by Railway; but Railway could not carry a substantial volume of intrastate shipments which were less than a carload in size (referred to in the proof as L.C.L. shipments)., as speedily or as. cheaply as such freight could be carried in motor trucks. over, the .highway, and Transport’s function was to supplement Railway’s service by furnishing motor carriage of intrastate L.C.L. freight. Johnson, Railway’s Assistant Division Superintendent (of the Diyision in which Beaumont lay), testified that freight shipped from Houston to Beaumont would arrive in,Beaumont about 15 hours earlier if it were carried by Transport instead of by Railway. It was also in proof from Johnson and from . Beckley, plaintiffs’ Beaumont Freight Agent, that it was cheaper to move Houston L.C.L. freight to Beaumont by truck instead of by rail. These circumstances were controlling in determining the method of transporting L.C.L. shipments between Houston and Beaumont and doubtless .were so in other instances of intrastate carriage. This testimony accounts for Transport’s existence and, with the details of plaintiffs’ working arrangement, now to be related, show Transport and Railway to be parts, of a single agency of transportation. Both Railway and Transport, with still, other transportation agencies not identified in the proof, are referred to under the trade-name “Missouri Pacific .Lines”. These words appear upon the front of plaintiffs’ freight depot in Beaumont. Frank L. Evans, who resides in Beaumont, testified that he was the General Agent' of the Missouri Pacific Lines, in which he included both plaintiffs, and that he solicited business for both of the plaintiffs. •Transport’s part in its mutual business with Railway seems to have been limited to the operation of the trucks which carried plaintiffs’ freight. Transport used Railway’s stations and freight docks. Railway’s office personnel also acted, for Transport and did the accounting which plaintiff’s business -required. There was some proof (from .Beckley) that Railway’s auditors at Kingsville audited the accounts kept by Railway’s depot staff and apportioned to Transport its share of the total income. Johnson, Railway’s Assistant Division Superintendent, testified that Transport has “no office on any division” of Railway’s. “They have no office force on any division. The railroad handles it on my division. Q. The railroad force handles all the business of the Transport Company, is that right? A. That’s right.” Charles E. Beckley, who was Railway’s Freight Agent at Beaumont, testified that he was also the Beaumont Freight Agent of Transport. He said: “I am their Agent (Transport’s) for bill of lading purposes”, as he was for Railway. Concerning bills of lading he testified: “ * * * the Transport Company have a bill of lading that is headed ‘Missouri Pacific Transport Company’, but due to a diversion in rates it is very seldom used. The truck rate was higher for sometime. I understand now that they have been equalled, and unless a man comes in and demands a Missouri Pacific Transport bill of lading we give him a bill of lading of Beaumont, Sour Lake & Western which we can use on the railroad or on the transport, either.” Beckley said that Transport had no office in Beaumont, that Transport had the right to come into the Beaumont Freight depot “and use the docks for the purpose of delivering and picking up freight for transportation to the highway. They don’t maintain any personnel there of their own organization.” He did not know whether Transport maintained an office at any place. “Q. What it comes to is that the corporation is a department of the railroad company, isn’t it? A. I couldn’t say. They work with the railroad company.” Beckley’s staff kept only one set of records for the business done by Railway and by Transport. These records were simple, consisting only of a daily manifest and of a report sent in monthly to Railway’s auditors at Kingsville, which seems to have either consisted of or more probably to have been accompanied by the waybills accumulating during the month. Beckley testified: “Q. * * * you handle your business differently between the two Plaintiffs in this case, do you not? A. No, sir. I keep one set of accounts. Any distribution of the proceeds of charges, freight charges or any transportation charges, is handled by the Auditing Department, which is located at Kingsville, Texas — . Q. Whatever accounting they (that is, Plaintiffs) make among themselves — . A. —is beyond my knowledge or information of anything pertaining to it.” He said that he retained the daily manifest but, as stated, sent the waybills to the Auditor’s office. These waybills were forms which seem to have indicated which of the plaintiffs carried the shipment as well as reciting other information concerning the shipment covered by the bill. Beckley selected which of the plaintiffs should carry the freight coming into the depot for shipment out of Beaumont. (Subject, doubtless, to the limitations upon the character of business of the particular carrier to which reference has been made.) He made no attempt to prefer one plaintiff over the other, but simply chose the speediest and most economical method of transportation available to him at the moment. VI. Heisig Transfer & Storage Company was, as we have stated, only a trade-name which had been assumed by Mrs. C. T. Heisig under which to conduct a general cartage and drayage business within the city of Beaumont. She also maintained and operated under this trade-name a warehouse in Beaumont for the storage of property. The active manager of Heisig was John Price, Mrs. Heisig’s son-in-law. Mrs. Heisig herself was an elderly woman and we infer that she had little to do with the details of ITeisig’s business. As stated, Heisig’s office and warehouse were located at 955 Pearl Street in Beaumont, 10 city blocks distant from plaintiffs’ freight depot. In conducting its business Heisig owned and used several motor trucks and employed several persons to drive these trucks and some other persons to serve the drivers as helpers. The evidence does not show how many trucks Heisig operated, but it is in proof that all of these drivers and helpers and that Heisig’s warehouseman had become members of Union prior to the time Union’s agent, Cascio, attempted to negotiate with Price, as is hereinafter related, and according to the applications of these men which Cascio had with him then there ■must have been six drivers and helpers in Heisig’s employment at that time, in addition to the warehouseman. Heisig seems also to have had at least one other employee, but the proof does not show what other employees Heisig had nor what their duties were. This lack of proof is immaterial since Union purports to act only for the drivers, helpers and warehouseman referred to above. Price, in his testimony, lists various concerns for whom Heisig performed cartage servcies, and he referred to various sorts of cartage work done by Heisig. However, it is apparent that Heisig’s most important customers were plaintiffs and that most of Heisig’s cartage work was done for plaintiffs. Price testified that about 30% of Heisig’s profit was earned and that about 50% (probably a little less than 50%) of Heisig’s truck movement took place in carrying freight -to plaintiffs’ freight depot from the places of 'business of Beaumont shippers and in carrying freight from that depot to plaintiffs’ Beaumont consignees. VII. Heisig’s relation to plaintiffs, and the rights and duties of Heisig and plaintiffs in the conduct of their mutual business, were defined by two written agreements, each dated May 18, 1945/ One agreement was between Heisig and Railway, and -the other, between Heisig, Railway and Transport. There is a latent ambiguity in this second agreement, arising out of the reference therein to the word “carrier” which is said therein to have been used in the first agreement but -which, in fact, does not appear in the first agreement. However, by “carrier” the parties evidently intended Railway, and we construe the second agreement as making the terms of the first agreement run between Heisig, Railway and Transport instead of between the first two only. Under the contract between the parties, as thus defined, Heisig agreed with plaintiffs to carry'plaintiffs’ L.C.L. freight from their Beaumont depot to their Beaumont consignees, and to carry to plaintiffs’ depot from places in Beaumont L.C.L. freight which persons in Beaumont wanted shipped over plaintiffs’ lines. For this service plaintiffs agreed to pay Heisig 14 cents per hundred pounds of freight carried by Heisig. Heisig was required to pay the costs of its operations. The contract as written specified no term during which it should exist; it was terminable by plaintiffs at their election if Heisig’s performance proved unsatisfactory, and by plaintiffs, or by Heisig, upon 30 days’ written notice to the other party. Heisig is referred to in the contract as “independent contractor” and plaintiffs reserved no control over the way and manner in which Heisig was to move the freight delivered to it, but since Hei-sig’s duties, according to the contract and according to the evidence as well, were limited to the performance at plaintiffs’ direction of plaintiffs’ (not Heisig’s) contracts of affreightment, many of which were initiated in behalf of plaintiffs by Heisig, it is apparent that Heisig was plaintiffs’ agent in doing this work and was not an independent contractor. The evidence, referred to below, shows that practically all contracts of affreightment entered into by plaintiffs with their Beaumont shippers originated in a transaction between the shipper and Heisig. The following provisions of the first agreement are material here; the word “contractor” signifies Heisig and the words “railroad company” are to be taken as signifying both plaintiffs and not Railway only: “Agreement With Contractor for Trucking Less-Than-Carload Freight “Whereas, the Railroad Company may from time to time put into effect certain tariffs under the terms of which it will provide truck service- for the transportation of less-than-carload freight between its freight depot and cars at Beaumont, State of Texas, and Consignors’ and Consignees’ locations within the area prescribed in said applicable tariffs, and the Contractor desires to perform so much of said service as the Railroad Company may request: “Now, therefore, the parties hereto hereby agree as follows: “1. General Provisions “Class of Service “(a) The Contractor, when notified so to do by an authorized agent of the Railroad Company, shall promptly transport from the Railroad Company’s depot and cars in the aforesaid city to any consignee’s resi-dencé, store, factory, warehouse or other place of business located in or near said city, all less-than-carload freight of every kind and nature whatsoever billed to such consignee and deliver the same to such consignee at the place where such shipments are usually unloaded, and likewise shall transport all less-than-carload freight which any shipper may desire to have transported' over the rails of the Railroad Company from the- residence, store, factory, warehouse or other place of business of such shipper (from the place where such-shipments are-usually delivered to-truck or drayman) to said freight depot or to cars designated by said agent of the Railroad Company. Except as may be otherwise provided by tariff, all loading and unloading of such freight shall be done by the Contractor at the Contractor’s sole expense. * ⅜ ' * * * ⅜ “Independent Contractor “(b) The Contractor shall employ and direct all persons performing any service hereunder and such persons shall be and remain the sole employes of and subject to the control and direction of the Contractor and not the employes or subject to the direction and control of the Railroad' Company, it being the intention of the parties hereto that the Contractor shall be and remain an independent contractor and that nothing herein contained shall be construed as inconsistent with that status. The Contractor promises and agrees to conduct the work in the name of the Contractor and agrees not to display the name of any advertisement of t'he Railroad Company upon or about any of the Contractor’s vehicles. “Receipts “(c) The Conrtactor shall give receipts to shippers for all shipments received, furnishing the Railroad Company with copies thereof, and shall take receipts in duplicate, from all consignees for shipments delivered and give a copy of such receipts to the Railroad Company. The Railroad Company shall give receipts to the Contractor upon delivery of all freight to the Railroad Company, and the Contractor shall receipt to the Railroad Company for all freight delivered to the Contractor by the Railroad Company. Receipts shall be on forms pre>-scribed by the Railroad Company and shall carry notations as to the apparent condition of the freight at the time of receipt or delivery, if in other than good condition. Subject to instructions from the Railroad Company, n-o deliveries of freight shipped on order bills or on straight bills of lading subject to delivery orders shall be made by the Contractor until after the original order bills,of lading or delivery orders, properly endorsed, have been surrendered to the Contractor. The Contractor shall promptly deliver to the Railroad Company all such original bills of lading and delivery orders, properly endorsed, surrendered by any consignees on delivery of any freight handled hereunder. “Collections “(d) When requested so to do, the Contractor shall collect and pay to the Railroad Company’s agent, on the same day collected, whenever feasible, but in any event not later than noon of the next succeeding day, all charges with respect to such freight and all invoices on C.O.D. shipments, as shown on freight bills. The Contractor shall furnish receipts for any sums so collected on forms and in the manner prescribed by the Railroad Company. “Should the Contractor be unable to make such collections on inbound freight, the Contractor shall return the shipment to the Railroad Company at point designated by its agent and receipt shall be given to the Contractor therefor. “All collections shall be made in cash unless otherwise authorized in writing by the Railroad Company. The Contractor in no case shall be liable for the payment of checks or forms of payment other than cash accepted by him under such written authorization. “In the event that the Contractor violates the provisions of this sub-paragraph (d) the Contractor shall be directly responsible to the Railroad Company for such freight charges and invoices and the Railroad Company will in such case deduct the same from any amounts due the Contractor under any settlement as hereinafter provided. The Railroad Company shall not be required to exhaust its remedies against the person or persons primarily liable for said freight charges. * * * * * * “Term “(f) This contract cancels and supplants any and all other agreements and understandings for trucking between the Railroad Company and the Contractor covering the transportation of the aforesaid freight and shall take effect as of the day first above written, and shall remain in effect thereafter until terminated by either party giving not less than thirty (30) days’ written notice to the other party, provided that the Railroad Company may terminate this agreement at any time immediately upon written notice to the Contractor by reason of any adverse legislation, order or rule of any public authority, or in the event the Contractor’s services hereunder shall be unsatisfactory to 'the Railroad Company. “II. Indemnity “(Herein Heisig agreed to indemnify Plaintiffs against loss from injuries to third persons and to property; against ‘the issuance of any false or fraudulent bills of lading or delivery order or the giving or receiving (of same) for any freight or for freight charges by (Heisig). or any of (Heisig’s) agents or employees;’ against Heisig’s failure to make collections or remittances to Plaintiffs, or Heisig’s failure to take up and deliver to Plaintiffs order bills or delivery orders, as otherwise agreed; and against theft, embezzlement or defalcation by Heisig or its agents. . “The contract then provided: ‘The Contractor’s liability for freight handled hereunder while in the possession of the Contractor shall be that of an insurer, and the records of the Railroad Company as to the condition of freight when received by the Railroad Company from Contractor, or when delivered by the Railroad Company to the Contractor, shall be conclusive as between the parties hereto. Such freight shall be deemed to be in the’ possession of the Contractor until its delivery to and acceptance by the Railroad Company, or by the consignee, as evidenced by the giving or taking of the receipts hereinbefore provided.” “Heisig further agreed to comply with applicable statutes concerning Employer’s Liability, Workmen’s Compensation and Workmen’s Insurance, and to indemnify Plaintiffs against loss ‘due to the existence of such enactments.’ “Heisig further agreed to comply with other applicable laws and to indemnify Plaintiffs from ‘all liability for any failure or default’ in.this behalf by Heisig.) “III. Insurance “(Plaintiffs were authorized to procure and keep in force for their own protection insurance against various forms of losses referred to above, and Heisig agreed to pay toward the cost of this insurance the sum of $1.25 .out of each $100.00 earned by Heisig under the contract.)” This contract was actually exclusive in the sense that plaintiffs employed no other person to perform such services as Heisig undertook to perform in this contract. Plaintiffs had begun to furnish their Beaumont customers local pick-up and delivery service at the customers’ places of business a number of years before this contract was made, and they seem always to have rendered this service through Heisig. Johnson, Railway’s Assistant Division Superintendent, understood that Transport had had a contract with Pleisig for this local pick-up and delivery service since Transport began to furnish that service in 1931. Price testified: “Q. How long has Heisig Transfer & Storage Co.,- — been the local pick-up and delivery independent contractor for the Missouri Pacific? A. I don’t know. I went down there in 1935 and they (he refers to Heisig) had the contract then.” Plaintiffs did not make an individual charge for this local pick-up and delivery service furnished through Heisig. This service was a part of the performance promised by them under their contracts of affreightment; the fee they' charged was the’legal tariff for a carriage of freight which" included this local pick-up and delivery service. This appears from the preamble of the contract, and Johnson testi-tified: “Q. Well, with reference to your local deliveries, it is the duty of the Railroad under the Interstate Commerce Commission regulations to make local deliveries, is it? A. According to the tariff, yes, sir — according to the tariff we furnish free pick-up and delivery service unless the consignee wishes to perform the services themselves.” He testified further: “Q. Are there any billings upon which the consignees call ftfi their merchandise at the freight depot? A. On some occasions, yes, sir. Nothing preventing all of them from calling for it. Q. What is the tariff arrangement in that connection, for picking up his own merchandise? A. Consignee picking up his own merchandise is allowed 5 cents per 100 pounds for hauling his own merchandise.” Of course, it was to plaintiffs’ financial advantage to procure this local pick-up and delivery service to be done as cheaply as possible, since the size of plaintiffs’ share of the freight tariff depended upon the cost to them of this service. This could be assumed, but Johnson, in effect, so testified. He also testified that “we make a contract with the man that we can make it with, the most economical contract we can make.” Beckley said that the contract with “the drayman is made on a competitive basis.” If Price gave up his contract “We would advertise (for) a contract drayman, and anyone who had trucks could bid on that on a competitive basis, and the Railroad would — take the (lowest bidder) if they had facilities to handle it.” It was Railway’s universal practice to farm out its local pick-up and delivery service to local contractors. Johnson testified : “I don’t know of any on my -railroad where we make our own deliveries. Q. You don’t know of a single instance in which the railroad makes its own local pick-up and deliveries ? A. I don’t recall any, no, sir.” Transport had done the same in Beaumont for years before this controversy arose, and both plaintiffs employed a local contractor in Orange. Of plaintiffs’ Beaumont competitors, which included the Southern Pacific Lines, ■the Kansas -City Southern and the Santa Fe Lines, at least the first two furnished their Beaumont customers a local pick-up and delivery -service equivalent to that of plaintiffs, but there is some proof from Beckley and Cas-cio (which is not very satisfactory) -that these two carriers performed this -service through their own employees instead of by farming it out as plaintiffs did. The proof shows that plaintiffs were beneficiaries of low wage rates paid truck drivers and their helpers by Heisig. Cas-cio’s testimony showed that Kansas City Southern’s wage scale for truck drivers was $1.00 an hour, and that this carrier employed no helpers for the drivers. Cascio first said that Southern Pacific paid 90 cents an hour for drivers and 77 cents for helpers and $1.00 an -hour for road drivers, but on learning Transports rate of pay, which was a little lower than Southern Pacific’s, he corrected his testimony and said that Southern Pacific paid $1.05 an ■hour for road -drivers. According to -Cas-cio these drivers for these carriers were members of Union and were doing the same kind of work which Heisig’s drivers and helpers did. Heisig’s wage rates were lower. Price, Heisig’s Manager, testified: “Q. Your hourly rate of pay -out there is 50 cents an hour, as brought out before? A. That is for helpers when they first ¡start, and. they don’t stay long enough to get a raise. They work three or four days and are gone. I have a large turn-over in helpers, except my regular employees and they get -more than 50 cents 'an hour.” Some of Hei-sig’s striking employees testified as to their rates of pay. Roan, who seems to have been a truck driver, and to have worked for Heisig only a short time before the strike (how long, we cannot determine; Joseph said -only one day, but Roan’s testimony shows longer period) said that he was paid 50 cents an hour. Conley, who worked for Heisig more than a year before the strike, saiid that he was paid 50 cents an hour as a helper and that he was paid 58 cents an hour as a driver. Davis, who worked one day for Heisig after the strike had been called, said that he was paid $1.00 an hour as a driver, but he also said that for his day’s work he was paid a total of $6.00 “and something”. The evidence does not clearly show whether Heisig could have, or could not have, paid Union’s wage scales and made a profit under the contract with plaintiffs. However, since Heisig- 'had to pay the cost of Heisig’s performance of the contract with plaintiffs and since plaintiffs made the cheapest contract that they could, it must he believed that Heisig’s lower wage rate was a -matter considered by Heisig in taking the contract from plaintiffs. The testimony referred to shows two elements of competition into which Union members entered. In the first place, there seems to be competition between the type of service rendered through a contractor such as Heisig and the type of service rendered through a carrier’s own employees such as was rendered by Southern Pacific and Kansas City Southern. On this rec^ ord, the seriousness of such competition ds problematical. The second type of competition in which Union members were involved was what may be described as competition with plaintiffs and with Heisig for a larger share of the legal tariff charged plaintiffs’ Beaumont shippers and consignees who made use of the local pick-up and -delivery service. We assume that the tariff was registered with the Interstate Commerce Commission, and with the Texas Railroad Commission, and that plaintiffs had to pay the total cost of carriage, including Hei-sig’s charges, out of this tariff. It was to Heisig’s interest to keep its cost of operations as low -as possible and it was -to plaintiffs’ interest to do -the same, so that it appears that plaintiffs on the one hand, Heisig on the other and Union in the third •place were disputing to some -extent, at least, about how the fixed freight -tariff should be divided among them. The evidence shows that before Union struck against Heisig, Heisig’s performance of the contract was satisfactory to plaintiffs; and the following evidence shows how -the parties worked: Johnson, Railway's Assistant Division Superintendent, said that when L.C.L. shipments were brought into Beaumont, whether by Railway -or by Transport, “Our warehouse force unloaded it -and segregated the shipments by consignees, and our contract pick-up and delivery man (that is, Heisig) -handles it from the freight station and delivers it to the consignees”. Some consignees carted their own freight, instead of having Heisig do it — doubtless to earn the 5 cents discount referred to above. Concerning freight shipped out of Beaumont, Johnson said that most of it was canted to the depot from the shippers’ place of business, and B-eckley’s testimony -shows that Beaumont shippers, because Heisig’s connection with plaintiffs was widely known, generally notified Heisig in the first instance, instead of plaintiffs, that they had -'freight for plaintiffs; Heisig -then picked up -this freight and delivered lit to plaintiffs at the depot. Beckley said: “Q. If a customer calls up and he has got a piece of freight he wants to ship say to Houston, it could go either by -the Transport Company by truck or -by railroad, couldn’t it? A. Yes, sir it could. Q. Now then, if he called up, where would he call, to the freight house? A. Well, its pretty common knowledge in Beaumont that the Hei-sig Storage is -our transfer drayman, and we get very few calls a-t -the local freight office requesting pick-up and delivery of stuff. It is all made to Heisig Storage at his office on Pearl Street. I understand they keep a list over there as calls come in, take these calls, and in the afternoon when they star-t their pick-up service these lists are divided among their drivers, certain routes to be picked up. It is possible, not -often but sometimes, someone will call the local freight and request a pick-up. That information is passed on to Heisig Storage ■Company, too, for Heisig Storage keep a record of their pick-up and delivery service in order to get their money from us.”' Further: “1 have seen the information passed on (to Heisig by witness’ own staff) and have also seen the warehouse foreman tell them to call Heisig Storage to keep from receiving the call and listing it.” There is some evidence respecting accounting and documents used in the mutual business of plain-tiffs and Heisig which need not be set out. Heisig seems to have given plaintiffs receipts fo-r the freight which Heisig received -from plaintiffs for delivery, and to have gotten and kept in the Pearl Street office receipts from consignees for freight delivered to them. This accords with the contract. Price’s testimony also shows that he collected large sums of money for plaintiffs. He said: “ * * * , when I deliver this freight t(he drivers .turn in'the money to my collector, he has to go up front (in the, depot), sometimes he will have twelve or fifteen hundred dollars. He has to go to the office and turn it over to the cashier.” Beckley testified concerning his own records of Heisig’s performance: “Q. How do you keep records ón Heisiig? A. We have a printed form and that shows the way bill, date, pounds, the money -that is picked up on deliveries. We have two separate reports, one used for delivery service and one for pick-up service. Q. Do you send them on to Kingsville too? (where Railways auditors are) A. Yes, sir. They are negotiable. I pay the money out and send them to Kingsville to get credit on it so I won’t be short jn my accounts.” All exchange, of freight between plaintiffs and Heisig took place at plaintiff’s freight depot. There is. a good .deal of proof in the record concerning Heisig’s use of plaintiff’s freight depot, raised by, and centering about defendant’s argument that the depot was one of Pleisig’s places of business. Briefly, this proof shows that Heisig did not maintain an office at the depot, and that Heisig kept, no records there. There was no garage ■ at the depot for Heisig’s trucks; Heisig left trucks pat the depot but these vehicles were in a street. Heisig’s' office and Heisig’s records were at its place of business at ‘955 Pearl Street, 10 blocks from the depot. Price did make such use of the office facilities at the depot as his business required, but -so did other persons who had business at the depot with plaintiffs; the facilities used by Price belonged to Railway, as did the depot, and the office must be taken to be Railway’s not Heisig’s. Railway controlled the building, except that pari rented to Universal Carloading 'Corporation; Johnson said that no space in the depot had been rented or leased to Heisig. However, the proof shows that the depot Was unquestionably one of Heisig’s fixed places of business, which had existed for years before the present controversy arose and which would endure at least as long as the contract existed between Heisig and plaintiffs, and thus it must be said -that this depot was one of .the fixed places of work for Heisig’s striking employes. This contract was made in May, 1945, over two years before the dispute arose between Heisig and Union, and contracts for service had existed between Heisig and plaintiffs for years prior to the date of the present contract. Furthermore, as we have stated, about 30% of Heisig’s profit was earned and about 50% of Heisig’s truck operations took place under this contract; all of these operations must have either begun or ended at the depot. 'We infer that Price, Heisig’s Manager, spent much of his time at the depot. We note that when Cascio undertook to negotiate with Price, ■he found Price at the depot on both of the occasions when he talked to Price. Four of Heisig’s former employes, either drivers or helpers, testified; each said that he was employed by Price at this depot to work for Pleisig. . One of these men, Willie Joseph, a helper testified: “Q. Tell the court where you would spend your time, where you would do your work. A. Most of it, the majority of it was spent at the Missouri Pacific' freight house. Q. Did you spend any time at all working on anything else except freight at the Missouri Pacific? .A. Since I have been there, two days.” ■ He had worked for Pleisig from March, apparently, until the strike occurred. Another of these men, Ivory Conley, had worked for Pleisig over a year before the strike, first as a 'helper and then as a driver. He said, in effect, that nearly all his time .was used in hauling plaintiffs’ freight. Price himself said that he had hired employes at the depot but did not remember how many. Heisig was proved to 'have had, and always to have exercised sole control over its employes, their wages and hours of work, and their conditions of employment, exactly as the contract provided. Plaintiffs have never assumed to exercise any control over such matters. .Price, Heisig’s manager, testified that he employed and discharged Heisig’s employes, fixed their rates of pay, and determined the number of hours to be'worked by them; and'that he directed the work of these employes. He testified, in effect, that plaintiffs neither 'had, nor assumed to exercise, any control over his employes; that Mrs. Heisig owned Heisig’s trucks, -that Mrs. Heisig carried workmen’s compensation insurance 'for the benefit of Heisig’s employes and also carried public liability insurance covering Heisig’s 'activities, that Mrs. Heisig paid for the gasoline and oil used in Hei-sig’s operations, that Heisig was liable for damages sustained by plaintiffs’ freight in his possession and that he (he is identifying himself with Heisig) carried insurance to protect Heisig against that liability. Johnson and Beckley confirmed Price’s testimony respecting Heisig’s, control over its own employes and there was no evidence to the Contrary. Beckley also said that neither plaintiff had any interest in Heisig’s equipment, that none of Heisig’s employes are carried on 'Railroad’s payroll for any purpose, that he had no right to control the movement of Pleisig’s employes or the method and manner in which they did their work. “The only right I have is to demand service. As long as (Heisig) delivers our freight intact, I don’t have any-th ”’g to say.” VIII. The only labor dispute shown by the proof is the strike called against Heisig 'by Union. No labor dispute existed between plaintiffs and their own employes. The proof shows that immediately before Cascio’s attempt to negotiate with Price, as referred to below, all of,, Heisig’s tru'ck drivers and their helpers and Heisig’s warehouse man had. applied in writing for membership in Union. and had apparently •become members of the Union. These applications were introduced in evidence, and each designated Union as the applicant’s “representative for purposes of collective bargaining, hereby revoking 'any contrary designation.” On the afternoon of Tuesday, October 28, 1947, Cascio (Union’s Business Agent) went to Price, intending to procure' Hei-sig’s recognition of Union’s status as the Collective Bargaining Agent of the aforesaid employees. Whether Cascio expected to subsequently .negotiate upon other matters was not shown. Price was at plaintiff’s depot, apparently in the warehouse foreman’s office when Cascio came up to him. The warehouse foreman and another person were in the room with Price, and Cascio was accompanied by his assistant .Bunch. There is some dispute as to what was said and done on this occasion, and at the meeting on the next morning, referred to below. Cascio •and Price each seemed to have thought that the other did not treat him with courtesy or fairness, but the proof shows at least the following facts, and these are 'the only details we need consider here, namely: Cascio informed Price that Hei-■sig’s employees had joined the Union and that he was appearing as their representative. He requested a private interview. Price refused the request and told him to proceed with the statement of what he had in mind. Cascio then produced the following document and after some preliminary explanation asked Price to read and execute it. This document read as follows : “October 28, 1947. Mr. Lee Cascio, Sec’y-Treas., Local Union No. 393 650 Franklin Street Beaumont, Texas Dear Sir: Pleisig Storage and Transfer 'Company, located at 955 Pearl Street, Beaumont, Texas recognizes Chauffeurs, Teamsters & Helpers Local 393 as bargaining agent for the Employees classified as Drivers, Helpers, Warehousemen, etc. This recognition comes as a result of checking signatures of the employees above named, with their signatures on the payroll. Company agrees not to discriminate against any of the employees for joining the Union and not to take any disciplinary action against same. Heisig Storage & Transfer Company B: -'-' It’s: -” When Cascio handed Price this document, he had in his possession the applications referred to above, designating the Union as' applicants’ collective bargaining agent, and 'Cascio was preparéd to exhibit these papers to Price as evidence that his request for recognition of Union as bargaining agent was justified. Cascio said that he told Price this; Price does not refer to the matter. Price read the document hut declined to execute it at the time, requesting some delay for discu'ssion with his principal, Mrs. Heisig, and for consideration of his course of action; and he and Cascio finally agreed to meet again at 10 o’clock the next morning. That night, Tuesday, October 28, 1947, the aforesaid Heisig employes held :a special called meeting and either called a strike against Heisig or else authorized ’Cascio to set one in motion — doubtless if his negotiations with Price failed. At 10 o’clock A.M. the next day, Wednesday, October 29, Gascio again went to Price, whom 'he again found at plaintiffs’ freight depot, and asked Price whether he would sign the document copied abov«; and Price declined to do so. Cas-cio then, in effect, notified Price that !a strike was called against Heisig and that he intended to establish pickets. According to Price, Gascio attempted at 4:30 that afternoon to arrange a meeting with Mrs. Heisig, but Price declined to make the arrangement, apparently because he thought this request (or as Price would put it, demand) involved some lack of consideration for Mrs. Heisig. No further communication between Union and Heisig regarding the strike, nor any attempt by either to communicate with the other regarding this matter was shown. We are satisfied that Price’s conduct is to be regarded as the conduct of Heisig, not only because Price was Heisig’s manager and Mrs. Heisig’s agent, but also because Price said, in effect, that he had told Mrs. Heisig of these matters; and Price’s course of conduct shows that what he did was either approved by Mrs. Heisig -in advance or was ratified by her afterwards, before Price testified on the temporary injunction hearing. We do not understand that Price had any objection to the form of document copied above; nor do we see any to be made. The instrument is short and simple, and a request to sign it was simply a request that Heisig recognize Union as the collective bargaining agent of Heisig’s truck operating personnel and warehouseman. We interpret the proof as showing: (1) that Union requested Heisig to recognize and deal with Union as the collective bargaining agent for Heisig’s drivers,helpers and warehouseman aforesaid; (2) that Heisig refused to do so; and (3) that Union then struck against Heisig to compel Heisig to recognize and deal with Union as -such bargaining agent, upon matters pertaining to the mutual business of Union’s members and Heisig. We are satisfied -that Heisig had no desire to reopen negotiations with Union, and that regardless of how Cascio may have conducted his negotiations with Price, an actual, bona fide labor dispute exists between Union and Heisig, in which Union’s -object is the object stated. We note that plaintiffs, in effect, have plead that a labor dispute existed between Union and Heisig. According to such proof as we find in the record the strike was called and the pickets were established at the depot in accordance with Union’s rules. IX. The pickets, as has been stated, took station at plaintiffs’ depot on Thursday, October 30th, and the evidence shows only what occurred from that time down to the time the hearing began on November 6th, of plaintiffs’ prayer for a temporary injunction. However, as stated, the parties submitted the merits of their respective contentions upon this proof. It appears that Heisig’s drivers, helpers and warehouseman actually -struck against Heisig, that is, ceased to work for Heisig as a consequence of the matters related above; and since the pickets were taken from these employees (at least in the great majority of instances) the strike must have become effective before or about the time the pickets were emplaced at the depot. It also appears that Heisig’s trucks were absent from plaintiffs’ depot for a short time, perhaps 24 hours, after the pickets appeared at the depot. Then Hei-sig resumed performance of its contract with plaintiffs and continued to do so down to the time of the temporary injunction hearing. However, this renewed performance was limited and was insufficient to move plaintiffs’ freight either into or out of the depot; Heisig was unable to operate as many trucks as it had operated prior to the strike. As one consequence, there had been a steady and continuous accumulation of freight at the depot which plaintiffs could not deliver to their Beaumont consignees (until Heisig’s reduced facilities finally got around to moving it) and there was proof from plaintiffs that they feared it would be necessary for an embargo to be declared, by themselves or by the Interstate Commerce