Brewster v. Miller

• Decision Date: 04 June 1897
• Parties: BREWSTER v. MILLER et al.
• Court: Kentucky Court of Appeals

41 S.W. 301

101 Ky. 368

BREWSTER v. MILLER et al.

Court of Appeals of Kentucky.

June 4, 1897

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by O. J. Owen Brewster against C. Miller's Sons and others to recover damages. Petition dismissed, and plaintiff appeals. Affirmed.

Kohn Baird & Spindle and Kinney, Gregory & Kinney, for appellant.

Humphrey & Davie, O'Neal, Phelps & Pryor, Alfred Selligman, and Helm & Bruce, for appellees.

PAYNTER J.

The plaintiff, Brewster, is a citizen of Louisville. From the allegations of the petition, there is an association in that city known as the "Funeral Directors' Association." The defendants in this action are undertakers, and members of the association, except the defendant the Louisville Coffin Company, which is engaged in the business of manufacturing caskets. On the 10th of December, 1893, the wife of the plaintiff died. He went to the defendant C. Miller's Sons to engage their services and to buy articles necessary for her burial. They refused to accept employment or furnish the articles necessary for that purpose, because, as they claimed, the plaintiff was indebted to them in the sum of $52 for burying his father. The defendants other than the coffin company refused to perform the necessary services and furnish the necessary articles for the burial of plaintiff's wife. This refusal was made because of this claim of C. Miller's Sons, that Brewster was indebted to them for previous services, etc., as stated. This is not a suit for the violation of a contract made by either of the defendants, but because they would not enter into one with the plaintiff, and furnish the services and the materials which he desired. It is alleged that the Funeral Directors' Association is a trust and confederation, and by reason of the terms and purposes of the trust combination, and conspiracy, the defendants refused to furnish any of the materials or render services necessary for the burial of the plaintiff's wife, and that the defendants refused for the purpose of enforcing, by duress and oppression, the collection of the debt due C Miller's Sons. The articles of the association and by-laws, which plaintiff claims make it an unlawful trust and a combination in restraint of trade, are as follows: Article 5 of the constitution reads: "Each and every member of this association who shall, either directly or indirectly, sell, exchange, give, or hire any part of his goods or equipments to or from, or in any way aid or assist, any funeral director or branch establishment, not a member of this association, shall on conviction thereof, after a fair an impartial trial, be fined for each and every offense as provided in article 6 of this constitution." Section 1 of article 6 reads as follows: "If any member of this association be found willfully guilty of violating any part of this constitution, by-laws, rules, or regulations that may now or hereafter be adopted for the government of this association, where the penalty is not specified in the laws, shall, if convicted, after a fair and impartial trial and investigation of the same, be fined ten (10) dollars for the first offense, twenty (20) dollars for the second offense, fifty (50) dollars for the third offense, and expulsion for the fourth offense." Sections 1 and 2 of article 3 read as follows: Section 1: "All manufacturers and dealers in caskets, coffins, and funeral directors' supplies, of every name and nature whatever, are hereby requested not to sell any articles in our line, to any funeral director or other parties, for use within the jurisdiction of this association, unless he or they be members hereof in good standing." Section 2: "If any manufacturer, dealer, or traveling salesman of the same shall not fully and in every respect comply with the requirements of section 1 of this article, then we, the members of this association, hereby agree and pledge ourselves to withdraw our patronage from him and the house represented, and will not purchase goods from them." Sections 1 and 2 of article 9 read as follows: Section 1: "All manufacturers, liverymen, and dealers in our line of goods who signify their intention to abide by the constitution, by-laws, rules, and regulations of this association, who shall hold a judgment or an execution for over three months unpaid against a member of this association, for goods or livery work used in their business as funeral directors, are requested to give this association an immediate written notice thereof, stating all facts in the case." Section 2: "Any member of the association who shall have a judgment or an execution standing against him, as described in section 1 of this article, without good and sufficient cause, which shall be decided by the members present at any regular meeting, after a fair and impartial investigation, if it be found that the member has met with no unusual misfortune, he shall be expelled, or shall be given not to exceed ninety days to pay the same, and, if not paid at the expiration of the given time, he shall then be expelled." Section 2 of article 10 reads as follows: "Any member who shall be found guilty of expressing his opinion unfavorably on a reasonable and just bill of any other member, to any party not a member hereof, shall, if convicted, after a fair trial, be fined according to article 6 of constitution." Article 14 of constitution reads as follows: "That there shall be established by the association a delinquent list, upon which shall be recorded the names of all persons who do not pay their bills. The association shall keep this list, and furnish members with all names that are handed to be recorded on the same. The members shall each enter in a book for the purpose (which book shall be furnished to each member by the association) all names, amount of indebtedness, date of bills, and F. D. to whom same is owing, as soon as received from the association." Section 2 of article 4 of the by-laws of said Funeral Directors' Association reads as follows: "The delinquent secretary shall receive from the members a complete list of all the parties who fail to pay their bills for the burial of their dead. He shall record all such names in a proper book procured by the association. He shall enter all lists furnished him in his book, and immediately send copy of the same to each member of this association, and all members shall be allowed access to the delinquent secretary's book at any time, and to take a copy of the same should they wish to do so. He shall be allowed six dollars for his services." Sections 1, 2, and 4 of article 11 of the by-laws are as follows: Section 1: ""Members of this association shall furnish a list to delinquent secretary, from time to time, of all parties who do not pay their bills for the burial of their dead." Section 2: "No member of this association shall wait upon any person who is indebted to any other member of this association until such indebtedness is settled, except it be for the burial of the person so indebted, in which case the undertaker having charge shall use every endeavor to have the old account settled; and any member who shall furnish articles to a person named in the printed 'Delinquent List,' or who shall persist in furnishing goods after having been notified by another member that they are indebted to him, shall be punished by a fine of not less than fifty (50) dollars, or a larger amount, at the discretion of the association." Section 4: "No member of this association shall accept any order for goods or work from any one who has previously called in another member, and with whom said party could not make satisfactory financial arrangements, without said member of the second part paying all claims of said member of the first part, and taking all chances for collection on his own responsibility, as no protection will be afforded him through the medium of the delinquent list." Sections 1, 2, 6, 7, and 9 of article 12 are as follows: Section 1: "Any member of this association who shall purchase goods of any manufacturer, dealer, or jobber who is not a member or recognized by the National Burial Case Association shall be fined in the sum of fifty dollars." Section 2: "Whenever there shall be a member of this association located in a suburban village or town, where there is a local cemetery, said members shall, if they desire, have the association establish a price for hearses and carriages to said cemetery; but in no case shall said member or members be allowed to hire hearses and carriages for less than the published price list to any cemetery other than the ones mentioned in said exceptions, and any violation of the above section shall be punished according to article 6 of the constitution." Section 6: "Whenever a member of this association shall be called upon to superintend a funeral, for which he does not furnish a case or casket, a charge shall be made of not less than five (5) dollars for personal services, and a reasonable larger amount shall be charged should the engagement require extra attention; and any neglect to make such charge shall lay the member so doing liable to penalties, as per article 6 of constitution." Section 7: "All members of this association are allowed to make a discount of five per cent. on all funeral bills when a case or casket is furnished, when said bills are paid within thirty (30) days from date of burial; and any excess of five per cent. is positively prohibited, and no discount shall be allowed on bills where no case or casket is furnished." Section 9: "It shall be the duty of each member of this association, should he know of any other member of this association who is violating the constitution,...