Empire Storage & Ice Co. v. Giboney

Decision Date08 March 1948
Docket Number40099
Citation210 S.W.2d 55,357 Mo. 671
PartiesEmpire Storage and Ice Company, a Corporation, v. Joseph Giboney, Harold Hackell, Paul Mandalia, Sam Ippolito, Harry Weston, Walter Downey, Roy Uttinger, James Pike, Terrill Henry, A. J. Jenkins, Individually, and as President of the Ice and Coal Drivers and Handlers Local Union No. 953, Appellants
CourtMissouri Supreme Court

Rehearing Denied April 12, 1948.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Clif Langsdale for appellants.

(1) The court committed error in refusing to give the declaration of law requested by the appellants at the close of the whole case. Rogers v. Poteet, 355 Mo. 986, 199 S.W.2d 378; American Steel Foundries v. Tri-City Central Trades Council, 42 S.Ct. 72; Bakery & Pastry Drivers & Helpers Local Union v. Wohl, 62 S.Ct. 816; Senn v Tile Layers Protective Union, Local No. 5, 57 S.Ct. 857; American Federation of Labor v. Swing, 61 S.Ct. 568; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736; Carlson v. California, 60 S.Ct. 746; Milk Wagon Drivers Union v. Lake Valley Farm Products, Inc., 61 S.Ct. 122; Milk Drivers Union of Chicago v. Meadowmoor Dairies, Inc., 61 S.Ct. 552; Cafeteria Employees Union, Local 302 v. Angelos, 64 S.Ct. 126; Parke & Tilford v. International Brotherhood of Teamsters, 165 P.2d 891. (2) The court committed error in overruling appellant's motion for new trial. Same authorities. (3) The order entered by the court in this case constitutes a denial of the appellants' right of free speech as guaranteed by the 1st and 14th Amendments to the Constitution of the United States and of the rights as guaranteed by paragraphs 8 and 29 of Article I of the Constitution of the State of Missouri. Same authorities.

Richard K. Phelps and Jerry T. Duggan for respondent; Gage, Hillix, Shrader & Phelps of counsel.

(1) The evidence established conclusively that the appellants were engaged in an unlawful conspiracy to destroy the respondent's business. The respondent was therefore entitled to injunctive relief. Rogers v. Poteet, 355 Mo. 986, 199 S.W.2d 378; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997; Hughes v. Kansas City Motion Picture Machine Operators Local No. 170, 282 Mo. 304, 221 S.W. 95. (2) The relief granted by the trial court does not abridge the constitutional rights of the appellants. Bakery & Pastry Drivers & Helpers Local Union v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178; Senn v. Tile Layers Protective Union Local No. 5, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229; Cafeteria Employees Union, Local No. 302, v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58; American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; Milk Wagon Drivers Union Local Number 753 v. Lake Valley Farm Products, Inc., 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63; Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836; American Steel Foundries v. Tri-State Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189; Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 62 L.Ed. 260, 38 S.Ct. 65; Carpenters & Joiners Union of America v. Ritters Cafe, 315 U.S. 722, 86 L.Ed. 1143; Rogers v. Poteet, 355 Mo. 986, 199 S.W.2d 378; Hughes v. Kansas City Motion Picture Machine Operators Local No. 170, 282 Mo. 304, 221 S.W. 95.

OPINION

Douglas, J.

Plaintiff corporation maintains a cold storage public warehouse where it stores perishable foodstuffs and other perishable merchandise owned by its customers. It also manufactures and sells ice which constitutes from fifteen to twenty per cent of its entire business. Plaintiff's employees are completely unionized by both the C.I.O. and the A.F. of L. The ice which it sells is a union product, not a non-union product. There is no labor dispute of any kind between plaintiff and its employees.

Defendants are members and officers of a labor union, the Ice and Coal Drivers and Handlers Local Union No. 953, which is affiliated with the American Federation of Labor. Its membership is composed of truck drivers for soft drink manufacturers, ice, and coal dealers. The membership also includes individual ice peddlers who operate their own trucks in carrying on their own businesses of selling ice at retail. About eighty per cent of the two hundred ice peddlers doing business in Kansas City are members of the union. The defendants engaged upon a campaign for the purpose of unionizing the remainder. One of the reasons was to establish a minimum wage of $ 4.00 per day for any helper who may be employed by a peddler. The union has obtained agreements from all the other manufacturers and distributors of ice in Kansas City under which they are bound not to sell ice to non-union peddlers.

For over twenty years plaintiff has been selling ice at wholesale to individual ice peddlers. The ice peddlers are not employees of plaintiff and never have been. There is no evidence that plaintiff has ever engaged in distributing ice to customers at retail. Sales of ice to peddlers are completed at plaintiff's plant at wholesale rates. Thereafter the peddlers resell the ice at retail to their own customers without being subject to any supervision or control by plaintiff. So far as plaintiff is concerned the peddlers are independent contractors. Only twelve to fifteen peddlers are regular customers of plaintiff.

Defendant Jenkins, President of the Local Union, demanded that plaintiff stop selling ice to non-union peddlers, under the threat he would use means at his disposal to enforce his demand. Plaintiff refused his demand and a picket line was placed at its plant with the the result that all deliveries to and from the plant by union drivers were halted. Drivers hauling perishable foodstuffs to plaintiff's plant could not deliver them for storage, and tenants of the storage house could not obtain their foodstuffs stored there. There was no violence. About eighty-five per cent of the plaintiff's storage business was stopped by the picket line. Defendants insist the only purpose of the picket line was to compel plaintiff to stop selling ice to non-union peddlers, and to obtain such result they had to interfere with plaintiff's business.

Plaintiff brought suit to restrain the picketing on the ground it was pursuant to an unlawful combination in restraint of trade to prevent plaintiff from carrying on its business including the sale of ice, and therefore the picketing was unlawful. Defendants answered they had the right to picket under the freedom of speech provisions of the Federal and State Constitutions.

After a hearing the trial court found defendants were unlawfully conspiring in restraint of trade, the picketing was for an unlawful purpose, and there was no labor dispute between plaintiff and its employees or between plaintiff and defendants. The court permanently enjoined defendants from picketing plaintiff's plant. Defendants have appealed.

Section 8301, R.S. 1939, Mo. R.S.A. of the article of our statutes entitled "Pools, Trusts, Conspiracies and Discriminations" forbids a combination in restraint of trade and declares it a conspiracy, as follows:

"Any person who shall create, enter into, become a member of or participate in any pool, trust, agreement, combination, confederation or understanding with any person or persons in restraint of trade or competition in the importation, transportation, manufacture, purchase or sale of any product or commodity in this state, or any article or thing bought or sold whatsoever, shall be deemed and adjudged guilty of a conspiracy in restraint of trade, and shall be punished as provided in this article."

The court en banc has recently held this statute to apply to a situation similar to the one we have here in the case of Rogers v. Poteet, 355 Mo. 986, 199 S.W.2d 378, and that decision is controlling here and rules this case.

In the Rogers case members of the Milk Drivers and Dairy Employees Local Union combined together to prevent rural milk haulers, independent contractors who were not members of the union, from delivering milk to the dairies' milk processing plants in Jackson County. The court held such combination was "a confederation in restraint of competition in the transportation of fresh fluid milk to all the milk processing plants in that area", pointing out that Section 8301 expressly forbids a combination in restraint of competition in the transportation of commodities.

On the same issues raised here as to the constitutional rights of the defendants to free speech the court said: "In other words, outside of the fundamental guaranties in the Bill of Rights in the Federal and State Constitutions, the question of the legality of such combinations is one of statutory law, not constitutional law." The court held the conspiracy between the union members violated Section 8301 and the common law, and was not protected by the First and Fourteenth Amendments of the Federal Constitution, and Section 8, 9 and 10, Article I of the Constitution of Missouri, 1945.

The instant case appears to be even a stronger case than the Rogers case. The plaintiff in that case was an individual hauler whom the union was trying to force into its ranks. But the plaintiff here is a business establishment which is being threatened with the alternative of either ceasing to furnish ice to some of its customers or having its business destroyed through a local transportation combination, substantially denying delivery service to or from its plant in connection with its principal business activity which is storage, not ice selling.

Following the principle laid down in the Rogers case we must...

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  • Atkinson v. City of Pierre
    • United States
    • South Dakota Supreme Court
    • November 16, 2005
    ...[¶ 62.] Courts have used the word "manufacture" to describe the process of making and selling ice. See Empire Storage & Ice Co. v. Giboney, 357 Mo. 671, 210 S.W.2d 55, 55 (1948) (plaintiff "also manufactures and sells ice[.]"); Jefferson Ice & Fuel Co. v. Grocers Ice & Cold Storage Co., 286......

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