41 S.W.2d 1049 (Mo. 1931), Electrolytic Chlorine Co. v. Wallace & Tiernan Co.

Citation:41 S.W.2d 1049, 328 Mo. 782
Opinion Judge:STURGIS
Party Name:Electrolytic Chlorine Company, Appellant, v. Wallace & Tiernan Company, Electro Bleaching Gas Company, John A. Strang and Roger W. Pratt
Attorney:E. C. Hamilton, C. W. Price, A. N. Gossett, James N. Beery and Wm. H. Allen for appellant. David M. Proctor and V. E. Phillips for respondents Wallace & Tiernan Co., John A. Strang and Roger W. Pratt.
Judge Panel:Sturgis, C. Ferguson and Hude, CC., concur.
Case Date:September 05, 1931
Court:Supreme Court of Missouri
 
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Page 1049

41 S.W.2d 1049 (Mo. 1931)

328 Mo. 782

Electrolytic Chlorine Company, Appellant,

v.

Wallace & Tiernan Company, Electro Bleaching Gas Company, John A. Strang and Roger W. Pratt

Supreme Court of Missouri

September 5, 1931

Appeal from Jackson Circuit Court; Hon. Clarence A. Burney, Judge.

Affirmed.

E. C. Hamilton, C. W. Price, A. N. Gossett, James N. Beery and Wm. H. Allen for appellant.

(1) The court below had jurisdiction of all the parties, and the failure and refusal of the respondents Electro Bleaching Gas Company, John A. Strang and Roger W. Pratt to plead or answer to appellant's petition, warranted the rendering of a judgment by nil dicit against those so defaulting. State ex rel. v. Sale, 232 Mo. 176; Brown Construction Co. v. McArthur Bros., 236 Mo. 41; Robinson v. Lawson, 26 Mo. 69; Sec. 1528, R. S. 1919; Dierks & Sons Lumber Co. v. Taylor (K. C. Ct. App.), 296 S.W. 180. (2) The fact that there were subsisting judgments against respondents Electro Bleaching Gas Company, John A. Strang and Roger W. Pratt, which the court had refused to vacate after motion filed and hearing thereon, rendered the verdict in favor of those three respondents, and the judgment based thereon, a nullity, and the court should have set the same aside, and granted the appellant a new trial.

David M. Proctor and V. E. Phillips for respondents Wallace & Tiernan Co., John A. Strang and Roger W. Pratt.

(1) The judgment should be affirmed because the record shows a finding against plaintiff on every issue, including damages; hence plaintiff never proved a cause of action and a general verdict in favor of all defendants was correct. This court will not reverse the judgment of any court unless the record shows error materially affecting the merits of the action. Sec. 1062, R. S. 1929; 17 C. J. 1046; 34 C. J. 152; Adderton v. Collier, 32 Mo. 507; Heer v. Citizens Ry. Co., 41 Mo.App. 63; Berkson v. Cable Ry. Co., 144 Mo. 211; Gate City Bank v. Strother, 188 Mo.App. 216; Wolf v. Fire Ins. Co., 219 Mo.App. 307; Hughes v. Ry. Co., 309 Mo. 560, 274 S.W. 711; McClure v. Hall, 19 Wend. (N. Y.) 25. (2) The contention of appellant that a verdict in favor of all the defendants is erroneous and contrary to the record was not urged when the verdict was rendered. Such objection cannot be raised by a motion for a new trial, and hence is not properly before this court for review. 38 Cyc. 1904; Dixon v. Atkinson, 86 Mo.App. 30; K. C. Masonic Temple Co. v. Young, 179 Mo.App. 279; Midwest Natl. Bk. & Trust Co. v. Parker Corn Co., 211 Mo.App. 419; Southern Mo. & Ark. Railroad Co. v. Wyatt, 223 Mo. 357; Longworth v. Kavanaugh, 286 Mo. 573. (3) The record discloses no valid default judgments against defendants John A. Strang and Roger W. Pratt, or either of them, in that they were not in default at any time. Glover v. Amer. Casualty Ins. & Security Co., 130 Mo. 187. There was no valid default judgment against the defendant Electro Bleaching Gas Company, for no jurisdiction was acquired over it, it being a foreign corporation not served within the State, and the court did not acquire jurisdiction by reason of its having joined in a petition for removal to the Federal court. Michigan Central Railroad Co. v. Mix, 278 U.S. 492.

Sturgis, C. Ferguson and Hude, CC., concur.

OPINION

STURGIS

[328 Mo. 785] This is a suit for damages in tort by plaintiff, an alleged Oklahoma corporation, against two other corporations, one of New York and the other of New Jersey, all engaged in the same line of business, to-wit, manufacturing and selling appliances and apparatus for purifying water, principally for supplying cities and towns. The two individual defendants are employees of one or both corporate defendants and reside at Kansas City, Missouri. The first petition filed denominated the cause of action as slander of title, contains thirteen counts, the first twelve each asking damages in the sum of $ 375,000 actual, and $ 375,000 punitive damages, and the thirteenth asking for injunctive relief

Page 1050

against the unlawful practices of the defendants. The plaintiff's business is described as manufacturing, selling and installing an apparatus, machine and process for the purification of water and sewage by means of a mixture of air, gases and vapor, known as the Williams Cell or Williams Process. The corporate defendants were working together in a similar line of business, their apparatus and process being under a patent known as the Ornstein patent, which was owned by the Electro Bleaching Gas Company, and was being sold and put in use by defendant Wallace & Tiernan Company. The plaintiff was a new company endeavoring to invade the field controlled by the defendant companies and was a prospective business rival. The gist of this action is that the defendants conspired and combined to destroy plaintiff's business and prevent same from growing, by unfair and dishonest means, principally in setting up and publishing to prospective purchasers and the trade in general the false claim that the apparatus and process used by plaintiff was an infringement on the patent of the defendant and that anyone using plaintiff's apparatus and process would subject himself to a suit and large damages for infringement of such patent. The basis of each process was the use of chlorine gas and this gave color to the claimed infringement. Plaintiff claims that its apparatus and process is in no way an infringement on defendant's patented apparatus and process and that defendants' claim was known by them to be false and [328 Mo. 786] was not made in good faith, but solely to destroy plaintiff's business and deter prospective customers from buying and using its products, though a superior and cheaper process.

The two corporation defendants are not residents of this State, and claim, especially the Bleaching Company, that it was not doing business in this State except as interstate...

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