Forest City Mfg. Co. v. International Ladies' Garment Workers' Union, Local No. 104

Citation111 S.W.2d 934,233 Mo.App. 935
PartiesFOREST CITY MANUFACTURING COMPANY, A CORPORATION (PLAINTIFF), RESPONDENT, ELY & WALKER DRY GOODS COMPANY, RICE-STIX DRY GOODS COMPANY, SOLOMON MANUFACTURING COMPANY, R. LOWENBAUM MANUFACTURING COMPANY, AND LANG-KOHN MANUFACTURING COMPANY, PLAINTIFFS, v. INTERNATIONAL LADIES' GARMENT WORKERS' UNION, LOCAL NO. 104 (DEFENDANT), APPELLANT, BEN GILBERT, DAVID DUBINSKY, EDITH PHILLIPS, MORRIS BILIS, ANN COOPER, GENE QUILLO, IRENE DECSEL, ANN WEBER, THERESE BURKE, PEARL BLACKBURN, PEARL PELFANO, VELMA MAULL, BERTHA WALKER, IDA REED, LORRAINE POE, FLOSSIE ZAPP, JOSEPHINE PASSAMANTE, JOSEPHINE RANDAZZO, ELIZABETH KRIEG, ANNA FELDMAN, WILMA CUSTER, IRENE POLK, HARRY SOLOMON, ALICE WEBB, PEARL DENNIS, CASSIE HILL, BEULA PACE, GEORGE VORTRUBA, AND VIRGINIA FRANCIS, DEFENDANTS
Decision Date04 January 1938
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court of City of St. Louis.--Hon. James F Green, Judge.

REVERSED.

Judgment reversed.

Francis M. Curlee and Richard F. Moll for respondent.

(1) A voluntary association, such as appellant local union herein having any powers or privileges not possessed by individuals or partnerships, is a corporation under the Constitution and Statutes of Missouri and may sue and be sued in its own name as such. Under our statutes, failure to deny by affidavit an allegation of incorporation disposes of the issue and proof of such incorporation. Sec. 11, Article XII, of the Constitution of Missouri; Secs. 4526, 4555, R. S. Mo. 1929; State v. Jones, 8 S.W.2d 66; Chillicothe Savings Ass'n v. Ruegger, 60 Mo. 218; Sec. 965, R. S. Mo 1929; Kupferschmid v. Southern Electric Ry. Co., 70 Mo.App. 438; Meyer Bros. v. Ins. Co. of N. America, 73 Mo.App. 166; Boyajian Bros. v. Reinheimer, 229 S.W. 441; Newton County Farmers & Fruit Growers Exchange v. Kansas City Ry. Co., 31 S.W.2d 803; Sec. 10116, R. S. Mo. 1929; Title 26, Sec. 103, U. S. Code Annotated; Title 15, Sec. 17, U. S. Code Annotated; Secs. 13195, 14329, 14337, R. S. Mo. 1929; United Mine Workers of America v. Coronado Coal Co., 259 U.S. 355. (2) The agreement of December 8, 1933, in no way related to or affected the proceedings in this action. Wonderly v. Christian, 91 Mo.App. 158; Wonderly v. Little & Hays Inv. Co., 184 S.W. 2188; Simmons v. Globe Printing Co., 201 Mo.App. 133; 12 C. J., p. 337, sec. 33; 12 C. J., p. 341, sec. 36. (3) The acts of appellant, including picketing, done pursuant to the unlawful conspiracy, proved by respondent, were unlawful, and the court properly enjoined such acts. Hughes v. Motion Picture Machine Operators, 282 Mo. 304; Joe Dan Market, Inc., v. Wentz, 223 Mo.App. 772.

Edward W. Tobin for appellant, International Ladies' Garment Workers' Union, Local No. 104.

(1) A voluntary, unincorporated association, such as defendant local union herein, having no distinct entity under the common law or the Constitution or statutes of Missouri, lacks legal capacity to sue or be sued in its own name, particularly in actions such as this, sounding in tort. Corbett v. Milk Wagon Drivers Union, Local No. 603, 84 S.W.2d 377; Newton County Farmers' & Fruit Growers' Exchange v. Kansas City Southern Railway Company, 326 Mo. 617, 31 S.W.2d 803; 5 C. J., sec. 118, p. 1369; Ruggles v. International Association of Bridge, Structural & Ornamental Iron Workers, 331 Mo. 20, 52 S.W.2d 860; Graham v. Grand Division Order of Railway Conductors et al., 107 S.W.2d 121; Article XII, Section 11, Constitution of Missouri; Chap. 32, sec. 4526, R. S. Mo. 1929; Streib v. International Brotherhood of Boiler Makers, etc., 76 S.W.2d 400; 5 C. J., sec. 6, p. 1335; Sec. 5122, R. S. 1929, par. 23; Secs. 10064, 10116, 13195, 14329, 14337, R. S. 1929; Metropolitan Street Railway Company v. Adams Express Company, 145 Mo.App. 371, 130 S.W. 101; Bruns v. Milk Wagon Drivers Union, Local No. 603, 242 S.W. 419; Mayes v. United Garment Workers of America, 6 S.W.2d 333; Clark v. Grand Lodge, etc., 328 Mo. 1084, 43 S.W.2d 404. (2) The agreement of December 8, 1933, compromised and settled all matters involved in these proceedings, and plaintiff, by reason thereof, was estopped and precluded from further proceeding with this cause. Wonderly v. Christian, 91 Mo.App. 158; Wonderly v. Little & Hays Investment Company et al., 184 S.W. 1188; Simmons v. Globe Printing Company, 201 Mo.App. 133, 209 S.W. 130; Marshall v. Larkin, 82 Mo.App. 635; Streibel v. Century Electric Company, 291 S.W. 147; 12 C. J., "Compromise and Settlement," sec. 33, p. 337; Troll v. Spencer et al., 238 Mo. 81, 141 S.W. 855; 32 C. J., "Injunctions," sec. 63, p. 76. (3) An injunction acts in personam, and before an injunction can issue against organizations or individuals named as defendants in a cause it is necessary for the plaintiff to establish that the specifically named defendants were guilty of some unlawful conduct in connection with the subject-matter of the proceedings, or that some person in conspiracy or in confederation with them was guilty of such unlawful conduct. F. C. Church Shoe Company v. Turner et al., 279 S.W. 232; Peltzer v. Gilbert, 260 Mo. 500, 169 S.W. 257; Putnam v. Coates, 220 Mo.App. 218, 283 S.W. 717; Cavitt v. Fowler, 285 S.W. 175; Yancy v. Jones, 132 S.W. 316, 153 Mo.App. 206. (4) An injunction will not lie to restrain peaceable picketing, and the use of peaceable persuasion to induce the customers of the plaintiff, and the general public, to withhold their beneficial patronage from him. F. C. Church Shoe Company v. Turner et al., 279 S.W. 232; Ex parte Heffron et al., 179 Mo.App. 639, 162 S.W. 652; 32 C. J., "Injunctions," sec. 269, p. 183, sec. 226, p. 164.

BENNICK, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

BENNICK, C.

This case, which is a suit for an injunction, grows out of the controversy attending a general strike which was called on August 10, 1933, by the International Ladies' Garment Workers' Union in behalf of its St. Louis locals against the several plaintiffs originally joining in the institution of this suit, all of whom were engaged in the manufacture of cotton dresses. Subsequently an order of dismissal was entered as to all the plaintiffs save Forest City Manufacturing Company, and it alone pursued the case to its final determination.

The defendants were the International Ladies' Garment Workers' Union, Local No. 104, and some twenty-nine individuals who, as officers and members of the union, were alleged to be responsible for the commission of unlawful acts of violence and intimidation directed against plaintiffs and those of their employees who had not gone out on the strike.

It would appear that the controversy leading up to the strike had had to do with the questions of closed shop and union representation in the operation of plaintiff's several businesses. No issue was raised as to the precise question of the employees' right to strike, but instead the injunction was sought for the purpose of having defendants restrained from the commission of acts which were alleged to be unlawful in connection with the strike.

Shortly following the institution of the suit a temporary injunction was ordered to issue by the court. Default was granted and inquiry ordered as to all the individual defendants, none of whom had appeared, and thereafter issue was joined between plaintiff Forest City Manufacturing Company and defendant International Ladies' Garment Workers' Union, Local No. 104. At the final hearing in the case the court ordered that the temporary injunction theretofore granted be made permanent, and from such judgment and decree of the court an appeal to this court has been duly perfected by defendant International Ladies' Garment Workers' Union, Local No. 104.

At the very outset of the case there is presented the question of the suability of appellant, which is concededly but a voluntary unincorporated association or labor union. The question was raised by demurrer to the petition wherein appellant's status as a voluntary unincorporated association was affirmatively alleged; it next appeared in the answer as a matter of defense; it was kept alive by motion to dissolve the temporary injunction; and finally, when the court, by its decree, had made the injunction permanent, the question was preserved for the court's attention in the motion for a new trial. In this court the question is brought to our notice in appellant's very first assignment of error, and it is therefore to be determined as a matter of prime importance in the case, since if it is true that appellant, by reason of its character as a voluntary unincorporated association, was not subject to be sued, then it must follow that respondent could not have been legally entitled to any injunctive relief against it.

Now the general rule is well settled that a voluntary unincorporated association, in the absence of statutory authority, does not have the legal capacity to sue or be sued in its common or associate name. This of course for the reason that such an association is "purely a creature of convention, organized and existing under the common-law right of contract only," and having no legal entity distinct from that of its members. [Newton County Farmers' & Fruit Growers' Exchange v. Kansas City So. Ry. Co., 326 Mo. 617, 31 S.W.2d 803; Ruggles v. International Association of Bridge, Structural and Ornamental Iron Workers, 331 Mo. 20, 52 S.W.2d 860; Corbett v. Milk Wagon Drivers Union, Local No. 603 (Mo. App.), 84 S.W.2d 377; 7 C. J. S., Associations, sec. 36; 4 Am. Jur., Associations and Clubs, sec. 46.]

In this State there has been but one attempt, so far as we are aware to constitute voluntary unincorporated associations suable entities by express statutory enactment. In 1915 the Legislature (Laws 1915, p. 225) enacted what now appears as the...

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