Caldwell v. Anderson

• Court: Missouri Supreme Court
• Writing for the Court: BRADLEY
• Citation: Caldwell v. Anderson, 212 S.W.2d 784, 357 Mo. 1199 (Mo. 1948)
• Decision Date: 14 June 1948
• Docket Number: 40597
• Parties: Samuel D. Caldwell, Lucille L. Caldwell, His Wife, and Gordon W. Caldwell, Appellants, v. William H. Anderson, Arthur Hunn, Roy A. Krehmeyer, and John T. Meinert

212 S.W.2d 784

357 Mo. 1199

Samuel D. Caldwell, Lucille L. Caldwell, His Wife, and Gordon W. Caldwell, Appellants, v. William H. Anderson, Arthur Hunn, Roy A. Krehmeyer, and John T. Meinert

No. 40597

Supreme Court of Missouri

June 14, 1948

Rehearing Denied July 12, 1948.

Appeal from Circuit Court of St. Louis County; Hon. Fred E Mueller, Judge.

Affirmed.

Herbert W. Ziercher and Erwin Tzinberg for appellants.

(1) The court erred in not finding that respondents entered into a conspiracy in restraint of trade and violated the common law forbidding a boycott. Sec. 8301, R.S. 1939; Rogers v Poteet, 199 S.W.2d 378, 355 Mo. 986; Bedford Cut Stone Co. v. Journeyman's Stone Cutters Assn., 274 U.S. 37, 47 S.Ct. 522; Purcell v. Journeymen Barbers, etc., 133 S.W.2d 662, 234 Mo.App. 843; Lohse Patent Door Co. v. Fuller, 215 Mo. 421. (2) The court erred in not finding that picketing, unaccompanied by violence or intimidation, but which amounted to boycott and a nuisance, should be enjoined when no labor dispute was involved. Purcell v. Journeymen Barbers, etc., supra, l.c. 670; Hughes v. Kansas City Motion Picture Machine Operators, Local No. 170, 221 S.W. 95, 282 Mo. 304; Waitresses Union, Local No. 249, v. Benish Restaurant Co., 6 F.2d 568; Rogers v. Poteet, supra; Lauf v. Skinner & Co., 303 U.S. 323; Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807. (3) The court erred in not finding that picketing, though peaceful should be enjoined when one of its purposes was to force the signing of an unlawful contract. Fred Wolferman, Inc., v. Root, 204 S.W.2d 733; Silkworth Oil Co. v. Local No. 575, 15 L.R.R.M. 624, 16 N.W.2d 145; James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329; Crosby v. Rath, 25 N.E.2d 934; Carpenters & Joiners Union v. Ritter's Cafe, supra, l.c. 809. (4) The court erred in refusing to allow testimony of witness relating to threats of agent of Union as evidence of secondary boycott. State ex rel. v. Bland, 354 Mo. 495, 190 S.W.2d 234.

Robert A. Rossel, Raymond M. Freed, Malcolm L. Bartley and William H. Bartley for respondents.

(1) The court did not err in sustaining respondents' motion for a direct verdict at the close of appellants' case. Because there was no evidence upon which any findings could be made that respondents entered into any conspiracy in violation of Section 8301, R.S. 1939, or any other unlawful conspiracy; nor was there any evidence upon which any finding could be made that respondents were picketing for an unlawful purpose. Sec. 8301, R.S. 1939; Ex parte Hunn, 207 S.W.2d 468; Fred Wolferman, Inc., v. Root, 204 S.W.2d 733; Rogers v. Poteet, 199 S.W.2d 378; Thornhill v. Alabama, 60 S.Ct. 736, 310 U.S. 88; Schuster v. International Assn. of Machinists, 293 Ill.App. 177, 12 N.E.2d 50; American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72; Park & Tilford Importing Corp. v. Teamsters, 165 P.2d 891; Reiner v. Sullivan, 33 N.Y.S. (2d) 77. (2) Peaceful picketing, unaccompanied by coercion, intimidation or violence, is guaranteed by the Constitutions of the United States and the State of Missouri, and cannot be restrained on the ground that no labor dispute or relation of employer and employee exists between the pickets and the persons picketed. Ex parte Hunn, 207 S.W.2d 468; A.F.L. v. Swing, 312 U.S. 321, 61 S.Ct. 568; Cafeteria Employees Union, Local 302 v. Angelos, 320 U.S. 593, 64 S.Ct. 126; Carlson v. California, 310 U.S. 106, 60 S.Ct. 746; Thornhill v. Alabama, 60 S.Ct. 736, 310 U.S. 88; Bakery and Pastry Drivers Local Union v. Wohl, 315 U.S. 769, 62 S.Ct. 816. (3) The court properly excluded the offered testimony of the witness Mohan relative to threats of a secondary boycott inasmuch as no preliminary basis or foundation was laid for the admission of such hearsay testimony. Clarkson v. Laiblin, 202 Mo.App. 682, 216 S.W. 1029; F.C. Church Shoe Co. v. Turner, 279 S.W. 232.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action for an injunction to enjoin picketing of plaintiffs' construction project and for $ 10,000 damages. At the close of plaintiffs' case the trial court directed a verdict for defendants and plaintiffs appealed.

The facts in the main were agreed upon at a pretrial conference. Plaintiffs (appellants) are the owners of lots 1 to 118, both inclusive, of Belridge, a subdivision in St. Louis County and began the development of the subdivision by erecting dwelling houses along the east side of McKibbin Road. At the time this cause was filed (February 24, 1947) plaintiffs had finished 3 houses and had 14 under construction. The 3 finished houses were occupied by plaintiffs and J. R. Wedbin who had theretofore purchased lot 119. The plan was to eventually build a house on each of the 119 lots. The 14 unfinished houses were in various stages of construction when the suit was filed. The houses sold for $ 8,826, and all sales up to the time of the trial (May 6, 1947) had been to veterans of World War II. Defendants (respondents) are officers and agents of the Building and Construction Trades Council of St. Louis, which is affiliated with the American Federation of Labor.

In St. Louis and St. Louis County about 95 percent of the labor employed in construction work is union labor. Plaintiffs employed only nonunion labor on their construction project. It is the custom and practice of the Building and Construction Trades Council to endeavor to prevail upon all employers in the construction industry to enter into written contracts with said Council to employ union labor only. Defendants Krehmeyer and Meinert and other union representatives, before picketing was commenced, called upon plaintiff Samuel D. Caldwell on several occasions and requested that plaintiffs enter into such contract, but they refused to do so. After such refusals and on May 28, 1946, said Council placed pickets at plaintiffs' project. These pickets walked in the public street in front of the project carrying umbrellas bearing the legend that plaintiffs were unfair to said Council, and for awhile one of the pickets carried an umbrella bearing the legend that plaintiffs were unfair to the International Brotherhood of Electrical Workers, Local No. 1, affiliated with said Council.

After picketing commenced union labor members refused to cross the picket line, and as a result plaintiffs were unable to secure delivery of materials, and were unable to secure installation of gas and electricity in the houses constructed. Plaintiffs, however, were able to carry on so far as getting materials. They did this by purchasing the necessary equipment and doing their own hauling. This caused plaintiffs "much inconvenience and some delay in the construction of their houses." When a house was sold and occupied by the purchaser the pickets were withdrawn from such house and gas and electric installation could then be obtained. All the picketing was peaceful; there was not at any time any violence. The contract would have required plaintiffs (1) to employ only workmen affiliated with the American Federation of Labor "and members of a subordinate local union of that body in this vicinity"; and (2) to require all subcontractors to employ union workmen affiliated with the American Federation of Labor and members of the local in the vicinity. The contract would have required the Council to furnish plaintiffs "a sufficient number of competent workmen."

Plaintiffs make two principal contentions, namely, that defendants entered into a conspiracy in restrain of trade in violation of Sec. 8301 R.S. 1939, Mo. R.S.A., Sec. 8301, and that there was no labor dispute between the pickets and the picketed, and that therefore the picketing was unlawful.

As supporting the contention that defendants entered into a conspiracy in restraint of trade, plaintiffs cite said Sec. 8301; Rogers v. Poteet et al., 355 Mo. 986, 199 S.W.2d 378; Bedford Cut Stone Co. et al. v. Journeymen Stone Cutters' Assn. et al., 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916; Purcell v. Journeymen Barbers, etc., Union et al., 234 Mo.App. 843, 133 S.W.2d 662; Lohse Patent Door Co. v. Fuelle et al., 215 Mo. 421, 114 S.W. 997. It is admitted that the purpose of the picketing was to force appellants to contract with the Council to employ only those persons belonging to union organizations affiliated with the Council and to agree to employ only union subcontractors. It is further admitted that members of all unions affiliated with the American Federation of Labor recognized and refused to cross the picket line. In the Rogers case the court said [199 S.W.2d l.c. 386]: "An actionable conspiracy . . . may have two aspects: it may consist of an executed agreement either to do an unlawful act, or to do a lawful act in an unlawful manner, whereby the plaintiff is damaged. And so, here, even though the appellants were not guilty of violence, threats, intimidation, malice or breach of contract, and conceding they might have done as individuals all that they did do, yet when all the union members at all the milk plants in the area confederated to reject the milk, the action was conspirative, if the respondent's milk hauling business thereby would have been destroyed."

But the present facts are quite different from those in the Rogers case. As appears, it is admitted in the present case that all union members whose union is affiliated with the American Federation of Labor refuse to cross a picket line, and as appears, it is admitted that it was the policy of the Building and Construction Trades Council to endeavor to prevail upon all employers in the construction industry to employ union labor only. From these admissions and the contract sought by defendants as to employment of union labor only, plaintiffs deduce that defendants...