Aalco Laundry & C. Co. v. Laundry Linen, Etc., U. L. No. 366

• Decision Date: 05 April 1938
• Docket Number: No. 24272.,24272.
• Citation: 115 S.W.2d 89
• Court: Missouri Court of Appeals
• Parties: AALCO LAUNDRY & CLEANING CO. et al. v. LAUNDRY LINEN & TOWEL CHAUFFEURS & HELPERS UNION LOCAL NO. 366 et al.

115 S.W.2d 89

AALCO LAUNDRY & CLEANING CO. et al. v. LAUNDRY LINEN & TOWEL CHAUFFEURS & HELPERS UNION LOCAL NO. 366 et al.

No. 24272.

St. Louis Court of Appeals. Missouri.

April 5, 1938.

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

"Not to be published in State Reports."

Suit for an injunction by the Aalco Laundry & Cleaning Company and others against the Laundry, Linen & Towel Chauffeurs and Helpers Union Local No. 366, and others, wherein a temporary restraining order was issued. On plaintiff's motion, a citation was issued against Elmer McKean charging him with contempt for violation of the temporary restraining order, and upon hearing of charge, he was found guilty of contempt and ordered to be committed to the city jail, and he appeals.

Reversed, and contemnor discharged.

Joseph A. Lennon, Dewey S. Godfrey, and R. K. Schurr, all of St. Louis, for appellant.

Charles H. Spoehrer, of St. Louis, for respondents.

SUTTON, Commissioner.

This is an injunction suit, commenced in the circuit court of the city of St. Louis, on December 18, 1934, by the Aalco Laundry & Cleaning Company and thirty-two other laundry companies, against the Laundry, Linen & Towel Chauffeurs and Helpers Union Local No. 366, and twenty-seven individuals, some alleged to be officers, and all alleged to be members, of the union. The suit grows out of a strike called against the plaintiffs. Upon a hearing pursuant to notice duly given, the court issued a temporary restraining order against "the defendant Laundry, Linen and Towel Chauffeurs and Helpers Union Local No. 366, its agents, representatives, members, aiders and abettors."

On motion of the plaintiffs the court issued a citation against Elmer McKean commanding him to appear forthwith in said court to answer a charge of contempt for the violation of said temporary restraining order.

Upon a hearing of said charge the court found the said McKean guilty of contempt, and ordered and adjudged that he be committed to the city jail for a period of twenty days. From said judgment contemnor has appealed to this court.

Contemnor was not named as a party defendant in the suit. Nor was there ever any service upon him of the restraining order. It appears, however, that a notice of the restraining order, prepared by the plaintiffs, was posted on the front door of the plant of the Colonial Laundry Company, and that while this notice was so posted contemnor was engaged in picketing in front of the plant about two hours a day for several days. In picketing he walked on the outer edge of the sidewalk about six feet from the front door on which the notice was posted. The testimony on behalf of plaintiffs shows that at that distance he could have read the word "injunction" at the top of the notice, but not the body of the notice.

The temporary restraining order is, of course, void as to the defendant Union, because the union is not a suable entity. Forest City Mfg. Co. v. International Ladies' Garment Workers' Union, Mo.App., 111 S.W.2d 934; Metropolitan Street Ry. Co. v. Adams Express Co., 145 Mo.App. 371, loc. cit. 376, 130 S.W. 101; Newton County Farmers' & Fruit-Growers' Exchange v. Kansas City Southern Ry. Co., 326 Mo. 617, 31 S.W.2d 803; State ex rel. Great American Home Savings Inst. v. Lee, 288 Mo. 679, loc. cit. 703, 233 S.W. 20; Graham v. Grand Division Order of Railway Conductors, Mo.App., 107 S.W.2d 121. And we think the order is also void as to the members of the union. The order is obviously leveled against the union as such. The order as against the members is merely incidental to the order as against the union, and the one falls with the other.

It is a well-established rule in equity suits that a few members of a class or group of persons whose interests are common may represent all the members either as plaintiffs or defendants. The rule is often applied in cases involving the members of voluntary unincorporated associations, or stockholders of a corporation, or legatees and distributees, or creditors or bondholders.

A typical illustration of the applicability of the rule is found in Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618, 620, 23 Am.St.Rep. 887, which was a suit to establish a rejected will. The suit was brought by a number of the members of an unincorporated religious society, on behalf of themselves and all other members of the society. By the will the testator bequeathed to the society one-half of his...