Clarkson v. Garvey
| Decision Date | 02 December 1913 |
| Parties | JAMES L. CLARKSON, Appellant, v. PATRICK F. GARVEY et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
AFFIRMED AND REMANDED (with directions).
Albert E. Hausman for appellant.
(1) Every member of Local Union No. 1 is liable in damages to any person who suffers loss through the enforcement of its written or unwritten rules, which provide that no man can work as a roofer in any union shop in St. Louis, unless he is a member of their union or unless he is otherwise satisfactory to it. Purington v. Hinchcliffe, 219 Ill. 159; Doremus v. Hennessy, 176 Ill. 508; Eddy on Combinations, par. 368, 376, 380; Giblan v. National Amalgamated Laborers Union, 2 K. B. 600; Taff Vale Railway v. Amalgamated Society, 1901 Appeal Cases, 426; Walsh v. Master Plumbers, 97 Mo.App. 292; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421. (2) To procure the discharge of an employee by threats of a strike against his employer is an actionable wrong. Likewise to cause the breach of a contract by threats of a strike against one of the contracting parties is an actionable wrong. Berry v Donovan, 5 L. R. A. (N. S.) 899; Quinn v Leathem, 1901 Appeal Cases, 495; Curry v Galen, 152 N.Y. 33; Brennan v. United Hatters, 9 L. R. A. (N. S.) 254; Luecke v. Clothing Cutters, 19 L. R. A. 408; Giblan v. Amalgamated Union, 2 K. B. 600; Thomas v. Railroad, 62 F. 803; Moore v. Bricklayers Union, 23 Weekly Cincinnati Law Bulletin, 48; London Guaranty Co. v. Horn, 101 Ill.App. 335, and 176 Ill. 608; Wilner v. Silverman, 109 Md. 341; Illinois Steel Co. v. Brenshall, 141 Ill.App. 36; Gibson v. Fidelity Company, 232 Ill. Sup. 49; Huskie v. Griffin, 75 N.H. 345; Hey v. Wilson, 232 Ill. 389; Reed v. Friendly Society of Stone Masons, 2 K. B. p. 88; Booth v. Burgess, 65 A. 226; Lohse Patent Door Co. v. Fuelle, 215 Mo. 421; Carter v. Oster, 134 Mo.App. 146; Swaine v. Blackmore, 75 Mo.App. 74; Lally v. Cantwell, 30 Mo.App. 524, and 40 Mo.App. 44; Beekman v. Marstens, 195 Mass. 205. (3) Combinations between officers and members of a labor union having for their direct object the immediate effect to injure and damage the business of persons at whom they are directed and thereby compel them to discharge their nonunion employees and replace them with members of the union, and thereby incidentally and indirectly to benefit the parties to the combination, are unlawful. Lohse Patent Door Co. v. Fuelle, 215 Mo. 421. (4) And in an action for such a tort damages for loss already accrued and to accrue may be recovered. Walker v. Cronin, 107 Mass. 555; Barry v. Donovan, supra; London Guaranty Co. v. Horn, supra. (5) This cause has been twice tried and a verdict rendered for plaintiff at each trial. The first verdict was set aside and new trial granted because the verdict was excessive. Therefore, the only question which can be now considered is, Did the triers of the fact err in a matter of law; or were they guilty of misbehavior. Sec. 2033, R. S. 1909.
T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe for respondents.
(1) Defendants' demurrer to the petition should have been sustained. (2) Only one new trial was granted all the defendants except Patrick Garvey. R. S. 1909, Secs. 2022, 2023. (3) There was no evidence to support the verdict against any of the defendants, and the court did right in sustaining their motion for a new trial. (4) The granting of a new trial rests in the sound discretion of the trial court, and its action in that behalf will not be disturbed on appeal unless it appears that its discretionary power is abused. Roden v. St. Louis Transit Co., 207 Mo. 392; Gould v. St. John, 207 Mo. 619; Morell v. Lawrence, 203 Mo. 381. (5) The trial court committed no error in sustaining defendants' motions for a new trial for the following reasons: Firstly, the verdict of the jury was against the overwhelming weight of the evidence and the result of bias, prejudice and passion. Secondly, the court erred in giving Instructions 1, 2 and 3 offered by plaintiff, and in refusing Instruction B offered by defendants. (6) The members of a voluntary association are not liable for the wrongful acts of the agents of such association unless they directed, participated in or approved of such wrongful acts. Mere membership in a voluntary association is not sufficient to make a member liable for the wrongful acts of the agent of the association. (7) Patrick Garvey, either as an individual or as the business agent of Local Union No. 1, was not guilty of any wrongful or illegal act as against the plaintiff and the evidence in the case fails to make a prima-facie case as against him.
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 G. 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 was 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, 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 fourteen houses in Parkview. He entered upon this work as subcontractor, and on March 20, 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 seventy-five or one hundred 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) 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 one hundred men walk out on you Monday morning." Holland waited, and Garvey came to his office and told him that unless he quit contracting with Clarkson (plaintiff) or giving him work, he would call all the...
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