Boise Street Car Co. v. Van Avery

• Decision Date: 05 June 1940
• Docket Number: 6739
• Citation: 103 P.2d 1107,61 Idaho 502
• Parties: BOISE STREET CAR COMPANY, a Corporation, Respondent, v. C. W. VAN AVERY, as an Officer and Representative of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local Union No. 1055, E. F. MCINTIRE, as Local Chairman of Sub-local Union No. 1055 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, C. W. VAN AVERY, E. F. MCINTIRE, PAUL BENNETT, EMMITT LIND. OWYHEE CAB CO., ORVILLE OSBORNE, STEVE SABIN, CECIL B. HOWELL, J. E. AKARD, OTTO VANDERSHEL, O. T. JEVONS, WILLARD D. BELL, JESS PHIPPS, ORIN R. RAYMOND, H. BURLINGAME, A. W. LANGDON, EMORY HURST, AL E. KNAPTON, R. E. PENIX, R. E. STEVENS, H. A. STONER, W. R. STODDARD, FRANK VANDERSHEL, BEULAH MCINTIRE, E. F. MCINTIRE, FRED MCCABE, ALBERT LAMBERT, GEORGE W. MURPHY, W. J. HARTMAN, RALPH ROTH, S. M. BLESSINGER, HOWARD A. CARTER, DON CHASE, ROSCOE I. HICKEY, and the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local Union No. 1055, and Sub-local Union of Said Association, Appellants
• Court: Idaho Supreme Court

103 P.2d 1107

61 Idaho 502

BOISE STREET CAR COMPANY, a Corporation, Respondent, v. C. W. VAN AVERY, as an Officer and Representative of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local Union No. 1055, E. F. MCINTIRE, as Local Chairman of Sub-local Union No. 1055 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, C. W. VAN AVERY, E. F. MCINTIRE, PAUL BENNETT, EMMITT LIND. OWYHEE CAB CO., ORVILLE OSBORNE, STEVE SABIN, CECIL B. HOWELL, J. E. AKARD, OTTO VANDERSHEL, O. T. JEVONS, WILLARD D. BELL, JESS PHIPPS, ORIN R. RAYMOND, H. BURLINGAME, A. W. LANGDON, EMORY HURST, AL E. KNAPTON, R. E. PENIX, R. E. STEVENS, H. A. STONER, W. R. STODDARD, FRANK VANDERSHEL, BEULAH MCINTIRE, E. F. MCINTIRE, FRED MCCABE, ALBERT LAMBERT, GEORGE W. MURPHY, W. J. HARTMAN, RALPH ROTH, S. M. BLESSINGER, HOWARD A. CARTER, DON CHASE, ROSCOE I. HICKEY, and the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Local Union No. 1055, and Sub-local Union of Said Association, Appellants

No. 6739

Supreme Court of Idaho

June 5, 1940

DAMAGES-LABOR DISPUTE-PLEADINGS-TRIAL-HARMLESS ERROR-INJUNCTION-COMPLAINT-FINDINGS-FRANCHISE RIGHTS.

1. In an action to recover damages for loss of anticipated profit occasioned by tortious interference with an established business, proof of amount and cause of such loss, with reasonable certainty, is sufficient.

2. Issues of fact, in civil cases, are to be decided in accordance with preponderance of evidence and reasonable probability of truth.

3. That bus drivers secured aid of attorney of street car company for which they were employed in drafting articles for an association, at suggestion of company's manager, did not establish that association was not a "labor union" in true sense, but under domination of employer, in absence of showing that attorney was unfaithful to drivers in performance of his duties, so as to establish that company, by interfering with employees' statutory right of self-organization, was in court with unclean hands when it attempted to secure injunctive relief in labor dispute. (Sess. Laws, 1933, chap. 215, secs. 6 (a-f), 12 (c).)

4. That motion was made by member of association of bus drivers for an increase of wages, which was seconded and was not put to a vote, did not establish that association was not a legitimate "labor union" organized and operated in interest of its members, so as to establish that street car company employing drivers, by interfering with drivers' statutory right of self-organization, was in court with unclean hands when it attempted to secure injunctive relief in labor dispute, where president of association testified that motion for wage increase was taken as a joke, and his testimony was not contradicted.

5. A strike by bus drivers, which resulted from some of drivers having been discharged by employer, constituted a "labor dispute" within meaning of statute, and court could grant employer injunctive relief only after making findings of fact. (Sess. Laws, 1933, chap. 215, secs. 6 (a-f), 12 (c).)

6. Where complaint of street car company stated cause of action against members of trade union for operating so-called "courtesy cars" in violation of laws of city and company's franchise rights, and it did not appear from complaint that labor dispute was involved, failure to allege in complaint that public officers, charged with duty to protect company's property, failed or were unable to do so, would not deprive court of jurisdiction to grant company such injunctive relief as the complaint and proof responsive thereto showed it to be entitled to, although existence of a labor dispute was disclosed by the answer. (Sess. Laws, 1933 chap. 215, secs. 6 (a-f), 12 (c); I. C. A., sec. 5-812.)

7. An error or defect in the pleadings or proceedings, which does not affect substantial rights of the parties, cannot be made the basis of reversal of judgment or decree. (I. C. A., sec 5-907.)

8. In suit for injunction, growing out of labor dispute, as defined in statute, no acts should be enjoined other than those mentioned in the complaint and included in findings of fact. (Sess. Laws, 1933, chap. 215, sec. 8.)

9. In suit by street car company for injunction against trade union and its members, growing out of labor dispute, as defined in statute, where no reference was made in complaint or finding of trial judge to picketing, or acts of violence, or threatened violence, or intimidation, that part of decree enjoining defendants from such acts was erroneous. (Sess. Laws, 1933, chap. 215, secs. 6 (a-f), 8, 12 (c).)

10. Where members of trade union, during labor dispute with street car company, as a means of putting economic pressure on company, operated so-called "courtesy cars" over same route as busses operated by company, in which operators collected no fares but had receptacles for contributions to be made by passengers who were inclined to contribute, such use of "courtesy cars" was an invasion of company's franchise right and justified granting of injunctive relief, but injunction must not be so construed as to interfere with members' lawful use of streets for purpose of giving publicity to, or communicating information of, the facts involving their dispute. (I. C. A., sec 59-809; Sess. Laws, 1933, chap. 215, secs. 6 (a-f), 8, 12 (c).)

11. In suit by street car company against trade union and its members for an injunction, growing out of a labor dispute and for damages, in which company sought to enjoin operation of so-called "courtesy cars" by members of union over same route as company's busses, as a means of putting economic pressure on company, where only evidence that certain of defendants operated "courtesy cars" was testimony of official of company, and such testimony was based on hearsay, names of such defendants were erroneously included in judgment and decree. (I. C. A., sec. 59-806; Sess. Laws, chap. 215, secs. 6 (a-f), 8, 12 (c).)

12. In suit by street car company against trade union and its members for loss of anticipated profits, as result of defendants operating so-called "courtesy cars" over same route as company's busses in violation of company's franchise right during labor dispute, evidence was insufficient to support an award of damages. (I. C. A sec. 59-806.)

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. In an action to recover damages for loss of anticipated profits, occasioned by tortious interference with an established business, proof of the amount and cause of such loss, with reasonable certainty, is sufficient. Issues of fact, in civil cases, are to be decided in accordance with the preponderance of evidence and reasonable probability of truth.

II. A strike by employees, which resulted from some of them having been discharged by their employer, constitutes a labor dispute within the meaning of 1933 Session Laws, chapter 215, section 12 (c).

III. If a complaint states a cause of action justifying the issuance of an injunction, and it does not appear therefrom a labor dispute is involved, the failure to allege that the public officers, charged with the duty to protect plaintiff's property, failed or were unable to do so, will not deprive the court of jurisdiction to grant plaintiff such injunctive relief as the complaint and proof responsive thereto show him to be entitled to, although the existence of a labor dispute is disclosed by the answer.

IV. An error or defect in the pleadings or proceedings, which does not affect the substantial rights of the parties, cannot be made the basis of reversal of judgment or decree.

V. In a suit for injunction, growing out of a labor dispute, as defined in 1933 Session Laws, chapter 215, no act or acts shall be enjoined other than those mentioned in the complaint and included in findings of fact.

VI. Injunction will issue, in a proper case, to prevent unlawful invasion of, or interference with, the enjoyment of franchise rights.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Suit for injunction and damages. Decree and judgment for plaintiff. Modified.

Judgment for damages reversed and a new trial granted. No costs awarded.

J. N. Leggat, Laurence E. Baird and K. C. Tanner, for Appellants.

A case involves and grows out of a labor dispute when the disputants are engaged in a single industry or occupation or are employees of one employer, even though such dispute is between one employer and one employee and whether such dispute is between an association of employees and one or more employees, or when the case involves any conflicting or competing interests in a controversy concerning the conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or concerning employment relations or any other controversy arising out of the respective interests of the employer and employee. (Sec. 12, chap. 215, Sess. Laws, Idaho 1933; Lauf v. Shinner, 303 U.S. 323, 58 S.Ct. 578, 82 L.Ed. 872; New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012; Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229; Wilson & Co. v. Birl (C. C. A. 3d, July 10, 1939), 105 F.2d 948; C. C. H. Labor Law Service, p. 18,905; Boro Park Sanitary etc. Market v. Heller (June 2, 1939), 280 N.Y. 705, 21 N.E.2d 207); Geo B. Wallace Co. v. International Association of Mechanics, Local 1005, 155 Ore. 652, 63 P.2d 1090.)

J. M. Lampert and Wm. F. Galloway, for Respondent.

No labor dispute within the meaning of such term as used...