Berry Foundry Company v. International Moulders Union

• Decision Date: 19 January 1914
• Citation: 164 S.W. 245,177 Mo.App. 84
• Parties: BERRY FOUNDRY COMPANY, Respondent, v. INTERNATIONAL MOULDERS UNION et al., Appellants
• Court: Kansas Court of Appeals

164 S.W. 245

177 Mo.App. 84

BERRY FOUNDRY COMPANY, Respondent, v. INTERNATIONAL MOULDERS UNION et al., Appellants

Court of Appeals of Missouri, Kansas City

January 19, 1914

Appeal from Buchanan Circuit Court.--Hon. L. J. Eastin, Judge.

AFFIRMED.

Judgment affirmed.

Mytton & Parkinson for appellants.

(1) The locked out employees were within their legal rights in picketing the plaintiff's plant in a peaceable, quiet and orderly manner. St. Louis v. Gloner, 210 Mo. 502; Shoe Co. v. Saxey, 131 Mo. 212; Door Co. v Fuelle, 215 Mo. 421. (2) The judgment for damages herein based upon the evidence of loss of profits was too remote speculative and dependent upon changing circumstances to warrant it in law. Howard v. Manufacturing Co., 139 U.S. 199; Gas Co. v. Siemens Co., 152 U.S. 200; Lund v. Tyler, 115 Iowa 236; Bierbach v. Rubber Co. 54 Wis. 208.

John E. Dolman for respondent.

(1) The law recognizes the right of workingmen to unite and to invite others to join their ranks, thereby making available the strength, influence and power that come from such association. But the very fact that it is lawful to form these bodies with multitudes of members means that they have thereby acquired vast power in the presence of which the individual may be helpless. This power, when unlawfully used against one, cannot be met, except by his purchasing peace at the cost of submitting to terms which involve the sacrifice of rights protected by the Constitution; or by standing on such rights and appealing to the preventive powers of a court of equity. When such appeal is made it is the duty of government to protect the one against the many as well as the many against the one. Gompers v. Stove & Range Co., 221 U.S. 418-439; Door Co. v. Fuelle, 215 Mo. 421-449-450; Shoe Co. v. Saxey, 131 Mo. 212; Iron Moulders' Union v. Allis-Chambers Co., 166 F. 45; Hopkins v. Stave Co., 83 F. 912-917; Union v. Barnes, 232 Ill. 424, 14 L. R. A. (N. S.) 1018; Jones v. Van Winkle Works, 17 L. R. A. (N. S.) 848, 852. (2) Proof of the expenses and of the income of the business for a reasonable time anterior to and during the interruption or stoppage of the business or of facts of equivalent import constitute the proper standard by which to measure the damages during the period of its enforced idleness. Morrow v. Railroad, 140 Mo.App. 200-214; Coal Co. v. Hartman, 111 F. 96; Loder v. Jayne, 142 F. 1010; McGinnis v. Hargrove, 163 Mo.App. 20-27; Viernow v. Carthage, 139 Mo.App. 276. (3) Plaintiff's evidence concerning his losses did not consist of guesses and estimates made by the witness, who was plaintiff's auditor, but consisted of actual facts within the personal knowledge of the witness, aided by books of original entry to refresh his memory, and which method of proof is competent and proper. Gardener v. Gas Co., 154 Mo.App. 666-676; State v. Carpenter, 216 Mo. 442-449; Ward v. Transfer Co., 119 Mo.App. 83-92; Wigmore on Evidence, sec. 758.

OPINION

ELLISON, P. J.

This proceeding was instituted by plaintiff filing a bill for injunction against defendants and for damages for unlawful acts charged in the petition. The circuit court issued a temporary writ which was afterwards made perpetual, and gave plaintiff damages in the sum of two thousand dollars. An appeal was taken to the Supreme Court and the latter transferred the case to this court on the ground that it did not have jurisdiction.

It appears that plaintiff conducted a foundry in the city of St. Joseph in which large numbers of workmen were employed and turned out, as completed work, large quantities of iron castings. These employees belonged to an organization known as Union Labor. Plaintiff had been paying the men by the day, but concluded to change to the plan of paying by the piece. To this the workmen, through their organization, objected. One Wilkerson managing officer for the Union, conferred with Berry the chief officer of the plaintiff company, but they failed to agree. It was shown by testimony for plaintiff that defendant's manager then said to Berry, "Do you realize what you are going up against? Don't you know we put the Kansas Wire & Iron Works in the hands of a receiver?" Berry answered, "I don't know as to that." When Wilkerson answered, "We did, and there is the United Iron Works, Springfield, Missouri; they haven't paid a dividend since we struck the shop;" and the "stockholders down there are jumping over themselves to sell the shop, only have a few working there; I can go down there and pull them out any time I want to." At the close of this conversation Wilkerson said he would "call the boys out to-night," Saturday; and Monday morning the men quit work and the strike began, with portions of the strikers doing "picket duty."

Plaintiff immediately advertised for men to take their places and numbers, either through the advertisement, or from otherwise hearing that employment could be had at the foundry, applied for work. A portion of these were turned back by the strikers, while others took employment in spite of opposition. It is the character of this opposition that makes up the dispute between the parties; plaintiff insisting that it consisted of brutal breaches of the peace, the terrorizing of its new employees, by stoning them and pursuing them on street cars and other unlawful harassments designed and intended to break up its business; while defendants contends that their conduct was confined to mild requests, made in a lawful and respectful way. Whichever of the parties is right in this radical difference of fact is entitled to prevail. For it has been determined by the Supreme Court of the State that laboring men have a legal right to strike and quit work in a body and that they have a right to post men near by to quietly and peaceably persuade other workmen not to take their places. [City of St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30; Shoe Co. v. Saxey, 131 Mo. 212, 32 S.W. 1106.] But they have no right to break the law by using force, intimidation or threats. Nor have they any right to conspire to break up their late employer's business. [Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997.]

The evidence makes a large volume of printed matter. It is quite clear that much of it is poisoned by passion and resentment and other parts by sympathy. The language of great portions is unprintable. Defendants say that plaintiff imported numbers of burglars, thieves, army deserters and drunkards to overawe and terrorize them. Much testimony was introduced by defendants tending to show the mildness of their behavior and the lawfulness of their conduct. Doubtless many of them were seen by different witnesses when there was no disturbance at hand; for it is not pretended that during the long time covered by this trouble, there was no intermission. But that defendants were guilty of gross violations of the law and the use of gross epithets--that they terrorized, chased assaulted and beat men whom plaintiff had employed is established by officers and other witnesses. Some of...