Hawley v. Merritt, 146
| Decision Date | 11 February 1970 |
| Docket Number | No. 146,No. 8850,S,146,8850 |
| Citation | 452 S.W.2d 604 |
| Parties | 74 L.R.R.M. (BNA) 2412, 63 Lab.Cas. P 52,325, 1970 Trade Cases P 73,216 S. S. HAWLEY, d/b/a S. S. Bud Hawley Construction Company, Plaintiff-Appellant, v. Edward MERRITT, Individually and as an Officer, Agent and Member of Local Unionheet Metal Workers' International Association, and as Representative of a class consisting of the members of Local Unionheet Metal Workers' International Association, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Donald W. Jones, Church, Prewitt, Jones, Wilson & Karchmer, Springfield, for plaintiff-appellant.
Daniel J. Leary, Joplin, for defendants-respondents.
This is an action for tortious interference with contract rights. The plaintiff had a verdict in the amount of $2,500. Defendants were granted a new trial on two specified grounds: (1) That plaintiff's Instruction No. 2 was erroneous in several respects, and (2) that prejudicial error was committed in admitting plaintiff's exhibits 9 and 10, and in admitting testimony (in reality, cross-examination) concerning those exhibits. The plaintiff has appealed.
The case arose out of defendants' picketing activity on two construction projects where the plaintiff was general contractor. The petition is prolix and patently involves complex rules of law. It is laid in two counts. In Count One, plaintiff alleges that the defendants '* * * conspired with other labor organizations, other individuals and members of other labor organizations, and * * * among themselves' for eight separate unlawful purposes, all of which are fully pleaded. One of the alleged objects of the pleaded conspiracy was '* ** to coerce the Ozark Empire Fair Board and the Boyd Aluminum Mfg. Co., Inc. to cease doing business with the plaintiff and to cancel their contracts with plaintiff and to replace plaintiff by (sic) contractors whose employees are members of the defendant union or of other unions affiliated with the Springfield Building Trades Council, all in violation of the common law against restraint of trade of the Missouri Anti-Trust Statute 1 and in violation of Sections 8(b)((4))(i)(ii)(4)(B).' 2 Count Two pleads the same picketing activity as tortious interference with contract relations.
The record events with which we are concerned occurred during the interrogation of defendant Merritt. Mr. Merritt identified himself as 'business representative' for the defendant union. Among other things, Mr. Merritt denied on direct examination that he, as an individual, had anything to do with the picketing complained of, and denied the existence of any conspiracy to take action against the plaintiff on the occasion in question.
On cross-examination, plaintiff's counsel launched into a series of questions concerning the activities of the Springfield Building Trades Council. We are not sure what this council is; apparently it is an organization composed of construction unions and the Teamsters Union. Counsel opened this series of questions by asking: Defendants' counsel objected that there was no allegation in the case relating to the Springfield Building Trades Council or any union other than Mr. Merritt's union. The court asked if plaintiff was prepared to 'tie in' the activity of the Springfield Building Trades Council, and counsel replied that since Mr. Merritt denied he had conspired with any other labor organization he was 'laying the foundation to go into this matter a little further.' Merritt was then asked what labor organizations were represented on the council; he answered he was not sure who all it was. Over objection that what the council discussed was not material to any issue, Mr. Merritt was asked: Merritt said he did not know the policy of the council, and he was then asked if '* * * the Council ever did in the past discuss things like I talked about, hounding the devil out of somebody because he had non-union help.' Merritt answered, 'Not that I know of.'
Defendants' attorney again objected that counsel's line of questioning was wholly irrelevant. Plaintiff's attorney was asked by the court if he could 'tie that in.' His reply was, 'I have a series of things that will show a past custom and practice which we can use as evidence of a present conspiracy, a continuing type conspiracy.'
Merritt was then asked if he remembered a meeting where a Mr. Clouse reported that 'they' were on strike at a nearby plant and 'that the Teamsters crossed their picket line.' Merritt did not. The witness was asked if he '(denied) that such types of things are discussed'; he did not recall anything like that. Counsel then inquired if the witness '(remembered) the meeting where the secretary of the Building Trades reported that he and Jr. McCarty and Jim Clouse went with Newton Construction Company on a church job at Kimberling City, that Mr. Newton assured them that it was not and would not be the policy of their company to sub-let work to non-union sub-contractors,' and the answer was 'No.' Being asked 'if he denied' such reports were given, the witness stated 'it could have been.' Counsel then suggested, 'In other words, the delegates to this Building Trades Council report about non-union jobs and go out and get commitments from general contractors that they won't use non-union sub-contractors, don't they,' and Merritt replied, 'Well, yes, that's our job.' Plaintiff's attorney inquired, 'And if they don't (agree) you put on a picket don't you,' and the witness replied, 'Not necessarily, no.'
Mr. Merritt was then asked: 'Q. Yes. Do you remember the meeting where Brother Ray Edwards reported on the meeting on the Gainesville School job and stated that we would have to 'ride shotgun on him to get our work,' do you remember that? A. No. Q. Do you remember the meeting where secretary Moore reported on the Bob Withers project in Kimberling City, a bowling alley, and Floyd Gill suggested, Counsel then inquired if it were not true 'that when one union puts on a picket they are supposed to notify the other trades (in the council) that the picket is put on so that all the trades will recognize that picket and not cross the picket and thereby the job would be shut down.' Merritt denied that his union had ever notified anybody of its intention to put on a picket. He added that his union had never been notified that a picket would be put on; he knew of no agreement among the delegates to the council that the unions would be notified about picketing activity. He had heard no business agent who was a representative on the council make a request that his union be notified. Merritt stated that he received no copies of the minutes of the Building Trades meeting, and he did not know what they contained. 'Occasionally' the Building Trades organization itself engaged in picketing activity, and all the unions were assessed for the cost of the picketing activity.
Plaintiff's attorney then switched to a series of questions concerning the defendant union. Merritt was asked if 'in fact your union was instrumental' in getting the Mack Hill Heating Company, a non-union contractor, pulled off a nursing home job in Joplin. Mr. Merritt answered, 'No.' The witness was then asked if there was a shopping center project in Lebanon where Newport and Hessee was general contractor and it had been indicated that the sheet metal work would go to a non-union subcontractor, and the witness had reported to the union that he was ready to take proper action. The witness stated he did not recall that incident. He was then shown some copies of minutes of the executive board meeting of the defendant union, and he stated that with respect to the project at Lebanon no action was ever taken. At this point plaintiff's exhibits 9 and 10 were introduced in evidence. The entries offered in evidence were as follows:
'Mack Hill Heating Co. non-union contractor was pulled off nursing home job at Joplin with promise from General Contractor a union contractor would be employed.
Building trades voted a double assessment for all trades to pay picket duty on non-union school job at Ash Grove. A motion was made seconded and carried to pay our regular assessment only until other trades square up.'
The defendants moved to strike all the testimony beginning with reference to the Springfield Building Trades Council because plain...
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