F. C. Church Shoe Co. v. Turner

• Citation: 279 S.W. 232,218 Mo.App. 516
• Parties: F. C. CHURCH SHOE COMPANY, a Corporation Appellant, v. PERCY TURNER, DAN CURLEY, ALBERT McKENZIE, GEO. RATHMAN, ED. WATHEN, WALTER VREDENBURGH, HARRY MAYER, WALTER CAJACOB, WM. HEAVEN, JOHN SERTL, JOHN BOETTGES, EDWARD MUELLER, FRANCIS HICKEY, JAMES WOOTEN, WALTER NEIDERBREMER, JOHN JONES, JOE SYKORA, LEO CREAMER, FRANK PEER, FRED SAENGER, STEVE GARSKI, BEN DURANSKI, THOS. KANE, A. ADAMEK, DAN HUNT, A. A. BATH, JOHN M. CLARK, THOMAS WALLACE, WM. HALLERMAN, JOHN KEMPER, WM. THOMPSON, CHAS. ROHLFING, TONY PAPROCK, JAMES MURRAY, JAS. McDONOUGH, AL. STAHLBERG, WALTER GROSS, FRED O'BROCK, WM. KELLY, ED. WERNER, ARCHIE VIE, WM. VON BARGEN, GEO. JANSEN, WALTER KOHRING, HERBERT FANNING, ROY WALTON, and JOHN KAMP, Respondents.
• Decision Date: 05 January 1926
• Court: Missouri Court of Appeals

279 S.W. 232

218 Mo.App. 516

F. C. CHURCH SHOE COMPANY, a Corporation Appellant, v. PERCY TURNER, DAN CURLEY, ALBERT McKENZIE, GEO. RATHMAN, ED. WATHEN, WALTER VREDENBURGH, HARRY MAYER, WALTER CAJACOB, WM. HEAVEN, JOHN SERTL, JOHN BOETTGES, EDWARD MUELLER, FRANCIS HICKEY, JAMES WOOTEN, WALTER NEIDERBREMER, JOHN JONES, JOE SYKORA, LEO CREAMER, FRANK PEER, FRED SAENGER, STEVE GARSKI, BEN DURANSKI, THOS. KANE, A. ADAMEK, DAN HUNT, A. A. BATH, JOHN M. CLARK, THOMAS WALLACE, WM. HALLERMAN, JOHN KEMPER, WM. THOMPSON, CHAS. ROHLFING, TONY PAPROCK, JAMES MURRAY, JAS. McDONOUGH, AL. STAHLBERG, WALTER GROSS, FRED O'BROCK, WM. KELLY, ED. WERNER, ARCHIE VIE, WM. VON BARGEN, GEO. JANSEN, WALTER KOHRING, HERBERT FANNING, ROY WALTON, and JOHN KAMP, Respondents.

Court of Appeals of Missouri, St. Louis

January 5, 1926

Appeal from the Circuit Court of the City of St. Louis.--Hon. Frank Landwehr, Judge.

AFFIRMED AND REMANDED.

Judgment affirmed and cause remanded.

Sam B Jeffries, Arthur E. Simpson and Paul F. Plummer for appellant.

(1) An answer having been filed on behalf of all of the defendants the voluntary associations who were made defendants thereby entered their appearance in the case and this entry of appearance could not be affected by the attempt to subsequently amend the answer. Bruns v. Milk Wagon Drivers' Union, Local 603, 242 S.W. 419, 421; Floreth v. McReynolds, 205 Mo.App. 143; Wicecarver v. Insurance Co., 137 Mo.App. 247; Roberts v. Insurance Co., 201 Mo.App. 239; State ex rel. v. Grimm, 239 Mo. 135. (2) An injunction will lie to prevent third persons from causing or assisting in a breach of contract between two other persons. Hughes v Motion Picture Machine Operators, 282 Mo. 304; Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 276; 2 L. R. A. (N. S.) 202. (3) An injunction will be granted to prevent picketing where it is accompanied by violence, threats, intimidation, misrepresentation of the attitude of an employer to his employees, or coercion. Hughes v. Motion Picture Machine Operators, 282 Mo. 304; American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 66 L.Ed. 189. (4) Where the right to an injunction exists at the time suit is filed and thereafter, the fact that picketing subsequently ceased prior to the final hearing in the case is no defense against injunction. Stegmann v. Weeke, 279 Mo. 131; Civic League v. City of St. Louis, 223 S.W. 891; Duff v. Russell, 14 N.Y.S. 134; U. S. v. Railway Employees, 283 F. 479; Piano & Organ Workers v. Piano & Organ Supply Co., 124 Ill.App. 353; Roberts, etc., v. City of Louisville, 92 Ky. 95.

E. W. Foristel, Mark D. Eagleton and John F. Clancy for respondent.

James T. Roberts, of counsel.

(1) On appeal the presumptions are all in favor of the correctness of the rulings of the trial court. This being an equitable action, the appellant is not in a position to complain of the action of the trial court in dismissing the bill, in that he has failed to bring up the entire record, when by so doing he could have placed before this court everything that was before the trial court. Beck v. Forsee, 199 S.W. 734; Kipner v. Stillman, 224 S.W. 321; Stowell v. Dickson, 177 S.W. 1080; Epstein v. Clothing Co., 67 Mo.App. 221. (2) Appellant's point 1 cannot be considered by this court. The record does not show that appellant excepted to the action of the trial court in permitting defendants to amend their answer by inserting the names of the individual defendants. R. S. 1919, sec. 1512; Polski v. St. Louis, 264 Mo. 463; Hafner Mfg. Co. v. St. Louis, 262 Mo. 633; Howell v. Jackson County, 262 Mo. 414; Construction Co. v. Withnell, 190 Mo.App. 33. (3) Appellant's contention that the trial court erred in holding that, because the picketing by the defendants had ceased after the suit was filed and prior to the final hearing, plaintiff was not entitled to a permanent injunction (see appellant's assignment of error 5 and his point 4) cannot be considered by this court for the following reasons: (a) The record does not disclose that the court so held. (b) The point was not called to the attention of the trial court in the motion for a new trial nor made a matter of exception during the trial. (4) Plaintiff framed his petition and tried his case on the theory that by reason of the picketing "A private nuisance has been established in such close proximity to plaintiff's said factory as to greatly injure or destroy the value of plaintiff's property and if allowed or suffered to continue will result in irreparable damage and injury thereto." Plaintiff must try his case on appeal on the same theory he presented to the trial court and cannot shift his position in the Court of Appeals and adopt a theory different from that presented to the trial court. Meddis v. Kenny, 175 Mo. 210; Gorham v. Railroad Co., 113 Mo. 408. (5) Plaintiff failed to make out a proper case for injunctive relief in that he not only failed to show irreparable damage, but failed to show any damage at all. A court of equity will not grant an injunction where the injury is small or technical. 22 Cyc. 760; 14 R. C. L., Title "Injunctions," sec. 33; Schuster v. Meyers, 148 Mo. 422; Powell v. Canaday, 95 Mo.App. 718-719; Lester R. E. Co. v. City, 169 Mo. 227; Warren v. Cavanagh, 33 Mo.App. 109.

BENNICK, C. Daues, P. J., Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.--

This is a suit in equity instituted by plaintiff on February 14, 1922, against the United Shoe Workers of America, a voluntary association, together with various locals of said union and certain members of said locals and of said union, as defendants. From the judgment of the court dismissing its bill, plaintiff has appealed.

The petition in substance alleged that on the 6th day of February, 1922, plaintiff entered into an agreement with the Boot and Shoe Workers Union to the effect that in the future plaintiff would employ in its shoe factory members of that union exclusively; that following said agreement it employed certain members of that union and desired to employ other members; that defendant, United Shoe Workers of America, was a voluntary unincorporated association having local branches in different parts of the United States, among which were the other voluntary associations named as defendants in this action; that Percy Turner was the general organizer of the United Shoe Workers of America, and that defendant Dan Curley was a member of the general executive board of said association; that the other individual defendants were members of the association and of one or the other of its local branches; that some of these individual defendants had been employed by plaintiff, but had ceased to be so employed February 1, 1922, when plaintiff shut down its factory; that there were a number of persons desirous of entering into plaintiff's employ; that the defendants combined and confederated together to terrorize and prevent the employees of plaintiff and persons desirous to enter into plaintiff's employ, all being members of the Boot and Shoe Workers Union, from prosecuting any work in plaintiff's factory; that defendants hung about, stationed themselves and took up positions in close proximity to plaintiff's factory for the purpose of picketing the premises and putting the employees and prospective employees in fear of bodily harm, and also applied to them vile and opprobrious epithets; that the acts of the defendants were not by reason of any grievance done to them, nor for the purpose of bettering working conditions, but were for the purpose of compelling plaintiff to break and abrogate its said contract with the Boot and Shoe Workers Union and to coerce plaintiff into employing only members of the United Shoe Workers of America; that the conduct aforesaid constituted a private nuisance in such close proximity to plaintiff's factory as to greatly destroy or injure its value.

Plaintiff prayed that the defendants be enjoined, both by temporary order and by permanent injunction, from interfering with the employees then in the employ of plaintiff, or with persons who desired to enter the employ of plaintiff, by use of threats, intimidation and personal violence, and that defendants be restrained from undertaking and inducing the employees of the plaintiff to quit, and from attempting to coerce plaintiff thereby to cease engaging members of the Boot and Shoe Workers Union.

Upon the filing of this petition an order was issued by the circuit court commanding defendants to show cause why a temporary injunction should not be issued and upon February 17, 1922, upon motion of plaintiff, a temporary restraining order was issued by the court after plaintiff had given bond in the sum of $ 3,000.

On February 23, 1922, the several voluntary associations, who were named as defendants, filed a plea in abatement setting up that service of process was had upon them illegally, which plea on April 24, 1922, was sustained.

On March 2, 1923, the remaining defendants jointly filed an answer consisting of a general denial, which answer on April 24, 1923, by leave of court, was amended by interlineation so as to contain the names of the several individual defendants.

The evidence was to the effect that plaintiff corporation was chartered in 1917, and from that date had been engaged in the manufacture of shoes at its factory at 2801 Benton street in the city of St. Louis; that prior to February 1, 1922, it had employed approximately 200 operatives, some of whom were members of unions and others non-union.

It was disclosed that there were two national labor organizations among shoe workers, one known as the Boot and Shoe Workers International Union, which was affiliated with the American Federation of Labor, and the other the United Shoe Workers of America, which...