Burke v. Fay

• Court: Missouri Court of Appeals
• Writing for the Court: Bland
• Citation: Burke v. Fay, 107 S.W. 408, 128 Mo. App. 690 (Mo. App. 1908)
• Decision Date: 21 January 1908
• Parties: BURKE v. FAY et al.

107 S.W. 408

128 Mo. App. 690

BURKE v. FAY et al.

St. Louis Court of Appeals. Missouri.

January 21, 1908.

1. CONSPIRACY — LABOR UNIONS — PAYMENTS UNDER COERCION.

If a plumbers' union and a gas fitters' union assessed a $200 fine against a master plumber for breach of his agreement to employ members of the gas fitters' union to do certain work, or demanded that sum to reimburse the unions for investigating his contracts to determine whether he was violating his agreement, the unions were guilty of a civil conspiracy, and if he was coerced to pay that sum in order to continue his business, he may recover damages of any one and from two or more of the persons who confederated to injure him.

2. SAME — EVIDENCE — QUESTION FOR JURY.

In an action to recover money demanded of a master plumber by labor unions, held, under the evidence, a question for the jury whether it was paid under duress.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by William Burke against Franklin C. Fay and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

The action is to recover $200 as for money had and received. At the close of plaintiff's case the court gave a peremptory instruction to find for defendants. A timely motion for new trial proving of no avail, plaintiff appealed. Plaintiff is a plumbing contractor. In 1905 he had contracts under way on three houses in the city of St. Louis, and also had contracts in other cities. His employés were members of the Plumbers' Union. Defendant Dalton was a member of the Plumbers' Union and its business agent. Defendant Fay was a member of the Gas Fitters' Union and its business agent. Both unions were affiliated with the Building Trades Council, and were working together. Prior to July, 1900, there was a controversy between plaintiff and the Gas Fitters' Union in regard to a gas fitting contract, which plaintiff had sublet, and upon which the Gas Fitters' Union refused to allow members of the union to work. This difficulty was settled by plaintiff signing the following agreement: "St. Louis, July 10, 1900. Agreement between William Burke and Gas Fitters' Union of St. Louis. I promise and agree to employ members of the St. Louis Gas Fitters' Union to do all gas fitting, both new work and jobbing, that I may have or contract for on this day. I further agree to figure on gas fitting on all buildings on which I figure on the plumbing work, and it is further agreed that I will do all in my power to further the aims and constitution of said Gas Fitters' Union. [Signed] William Burke." The Plumbers' and Gas Fitters' Unions afterwards became suspicious that plaintiff was not living up to his agreement on contracts he had in Memphis, Tenn., and Allentown, and directed defendants to make an investigation, which they did, making one trip to Memphis and two to Allentown. The two unions, through defendants as their agents, demanded $200 of plaintiff. Dalton testified that this demand was to reimburse the unions for expenses incurred by himself and Fay on the trips to Memphis and Allentown. Plaintiff had no gas fitters in his employ, and testified he did not take gas fitting contracts. He also testified that Dalton told him the gas fitters and plumbers had decided to work together, and, if he did not pay the $200, his plumbers would be called off on all the jobs he had, both in and outside the city of St. Louis; that at first he refused to pay the $200, and his men were called off on all the jobs he had and his work stopped, and he had to pay the $200 to get the men to go back to work. His evidence indicates the $200 was a fine imposed against him by the Gas Fitters' Union for a real or fancied violation of his agreement of July 10, 1900. Plaintiff testified there was a meeting of the Master Plumbers called to settle the trouble and he met with them, but they could not agree on anything, and he told them to call on him the next morning and he would pay the $200, as he was obliged to get his men back to work; that defendants called the next morning and he paid them $200, taking their receipt therefor. Following is the receipt: "April 26, 1905. Received of William Burke two hundred dollars ($200) for No. 35 and No. 80. [Signed] Charles Dalton. Franklin C. Fay." Nos. 35 and 80 are the numbers of the Local Plumbers' and Local Gas Fitters' Unions.

Perry Port Taylor, for appellant. C. J. Anderson, for respondents.

BLAND, P. J. ...