Clarkson v. Garvey

• Decision Date: 02 December 1913
• Citation: 179 Mo. App. 9,161 S.W. 664
• Parties: CLARKSON v. GARVEY et al.
• Court: Missouri Court of Appeals

161 S.W. 664

179 Mo. A. 9

CLARKSON v. GARVEY et al.

St. Louis Court of Appeals. Missouri.

December 2, 1913.

1. APPEAL AND ERROR (§ 533)—RECORD — WHAT CONSTITUTES — OPINION OF TRIAL JUDGE.

A written opinion, prepared by the trial judge on sustaining a motion for a new trial, to be available as disclosing the grounds for which new trial was granted must have been spread of record in the case.

2. APPEAL AND ERROR (§ 706)—REVIEW—DISCRETION OF TRIAL COURT — GRANTING NEW TRIAL.

Upon a record showing only that motions for a new trial made by all the defendants were sustained and a new trial ordered, the case is to be reviewed with reference to the grounds for new trial set forth in the motion therefor, and the award of a new trial must be sustained if the granting of it on any one of such grounds was a proper exercise of the court's discretion.

3. APPEAL AND ERROR (§ 979)—NEW TRIAL (§ 72) — REVIEW — DISCRETION OF TRIAL COURT—INSUFFICIENCY OF EVIDENCE.

It is proper to grant a new trial on the ground that the verdict is against the weight of the evidence, and an award of a new trial on that ground should be sustained, unless there appears an abuse of judicial discretion.

4. NEW TRIAL (§ 72)—GROUNDS—WEIGHT OF EVIDENCE.

The award of but one new trial will not be disturbed on appeal as for abuse of discretion, where there is in the record substantial evidence in favor of, or such as will sustain, a verdict for the party to whom the new trial is granted.

5. CONSPIRACY (§ 19)—ACTION—BURDEN OF PROOF.

In an action against the business agent and other officers of a local union for conspiracy, the plaintiff had the burden of proof throughout to show that the other defendants conspired with or were responsible for or ratified the business agent's acts.

6. NEW TRIAL (§ 78)—FIRST OR SECOND MOTION —STATUTES.

Under Rev. St. 1909, § 2023, providing that only one new trial shall be allowed to either party, except where the triers of the fact shall have erred in a matter of law, or where the jury is guilty of misbehavior, the rule is that if one verdict has been set aside on the ground of the insufficiency of the evidence, a second verdict cannot be set aside for the same cause.

7. NEW TRIAL (§ 78) — GROUNDS — INSUFFICIENCY OF EVIDENCE.

Under Rev. St. 1909, § 2023, which provides that only one new trial shall be allowed to either party, except where the triers of the fact shall have erred in a matter of law, or when the jury shall be guilty of misbehavior, the trial court may grant one new trial to either party upon the ground of the insufficiency of the evidence, or that the verdict is against the weight of the evidence, regardless of the number of new trials that may have been theretofore granted to the same party upon other grounds.

8. NEW TRIAL (§ 72) — GROUNDS — SUFFICIENCY OF EVIDENCE.

In an action against the business agent of a local union for conspiracy by threatening plaintiff's employer with a strike, whereby plaintiff lost his job and also a subcontract, evidence held sufficient to support a verdict for defendant, if it should be found so that the court did not abuse its discretion in granting him a new trial.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Injunction by James L. Clarkson against Patrick F. Garvey and others. From an order setting aside a verdict for plaintiff and granting defendants a new trial, plaintiff appeals. Affirmed and cause remanded, with direction to proceed with a new trial.

Albert E. Hausman, of St. Louis, for appellant. T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe, all of St. Louis, for respondents.

NORTONI, J.

This is a suit for both actual and punitive damages said to have accrued to plaintiff through the wrongful conduct of defendants in coercing his discharge from service, and causing the breach of certain contracts by another, to his detriment. Plaintiff recovered at the trial, but the court sustained defendants' motions for a new trial and set the verdict aside. The appeal is prosecuted by plaintiff from the order of the court setting aside the verdict and granting defendants a new trial.

Plaintiff is a journeyman composition roofer by occupation, and defendants are all members and officers of Local Union No. 1, International Brotherhood of Composition Roofers, Damp and Waterproof Workers of St. Louis, Missouri. This organization is a voluntary one and unincorporated. It seems to be a branch and is affiliated with the Building Trades Council of the city of St. Louis, in which organization all of the building trades of the city, save the bricklayers, are affiliated. The several defendants are the officers of Local Union No. 1, and defendant Patrick F. Garvey is the business agent of the union. Frederick Laibly was president of Local Union No. 1 at the time complained of, while Eugene Moriarity was vice president thereof, Michael McCarthy was recording secretary, and Michael Shannon the financial secretary of the union. Edward J. McCarthy was its treasurer; William Holstein, its doorkeeper; and as before said, Patrick F. Garvey, its business agent. All of the men so named are defendants here, and the suit proceeds against them jointly for both actual and punitive damages.

It appears plaintiff was formerly a member of this union from 1903 to 1906, when he established a small roofing business for himself, and his membership in the union ceased because of that fact, that is because he became an employer and was no longer a journeyman. About January or February, 1909, plaintiff sold his business and tools to the St. Louis Roofing Company and entered into an arrangement with that concern whereby he was to enter its employ. Plaintiff worked for that company one day and was laid off. Thereupon Mr. Holland, the manager of the St. Louis Roofing Company, directed its shop foreman to place plaintiff in charge of a gang of men as a foreman, or gaffer. Plaintiff reported for work at the shop of the St. Louis Roofing Company and the foreman, Haley, in obedience to the order of the manager of the company, gave him a yellow slip which signified his assignment to duty as the foreman of a gang. Thereupon defendant Patrick F. Garvey, business agent for Local Union No. 1 inquired of Haley, who was then present, whether or not all of the other men there waiting were to be given work that morning, and Haley replied in the negative. Garvey then said to Haley, "This man (meaning plaintiff) don't go to work either then," and Haley took from plaintiff his yellow slip and dispensed with his services as foreman. Plaintiff then made application to become a member of the union, and Garvey and all of the defendants considered it that night, but deferred action thereon. Finally plaintiff's application for membership in the union was rejected because, as he was told by Garvey, that he had applied for work from the St. Louis Roofing Company through the office and not at the shop where Garvey was stationed as the representative of the union.

Thereafter, on March 16, 1909, plaintiff entered into a contract with the St. Louis Roofing Company to roof a building to be occupied by the Rohan Boiler Works, and 14 houses in Parkview. He entered upon this work as subcontractor, and on March 20th, as he was completing the task of roofing the building to be occupied by the boiler works, defendant Garvey called upon him there and inquired what he was doing. Plaintiff informed Garvey he was roofing the building as subcontractor for the St. Louis Roofing Company, whereupon Garvey said to plaintiff substantially that he would not be permitted to continue working for that company. Garvey then said, "If the St. Louis Roofing Company gives you any more work, I will pull off every man they have on Monday morning," that is, he would call a strike of the union men in the employ of the roofing company. The evidence tends to show there were 75 or 100 union men, members of Local Union No. 1, of which defendants are officers, and Garvey was business agent, then in the employ of the St. Louis Roofing Company. During the same afternoon defendant Garvey called up Mr. Holland, manager of the St. Louis Roofing Company, over the telephone, and told him he wanted to see him about (Clarkson) plaintiff's working for the company. Holland replied he would have to hurry if he wanted to see him at the office. Garvey then said to Holland, "You had better wait or you will have 100 men walk out on you Monday morning." Holland waited and Garvey came to his office and told him that, unless h...