Joe Dan Market v. Wentz

• Decision Date: 08 October 1929
• Citation: 20 S.W.2d 567,223 Mo.App. 772
• Parties: JOE DAN MARKET, INC., RESPONDENT, v. LOUIS H. WENTZ, WILLIAM GEDDELL, CHARLES LEONHARD, OR LEONARD, AND AMALGAMATED MEAT CUTTERS AND BUTCHERS WORKMEN OF NORTH AMERICA, LOCAL NO. 88, AN UNINCORPORATED ASSOCIATION, APPELLANTS. [*]
• Court: Missouri Court of Appeals

20 S.W.2d 567

223 Mo.App. 772

JOE DAN MARKET, INC., RESPONDENT, v. LOUIS H. WENTZ, WILLIAM GEDDELL, CHARLES LEONHARD, OR LEONARD, AND AMALGAMATED MEAT CUTTERS AND BUTCHERS WORKMEN OF NORTH AMERICA, LOCAL NO. 88, AN UNINCORPORATED ASSOCIATION, APPELLANTS. ^[*]

Court of Appeals of Missouri, St. Louis

October 8, 1929

Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Miller, Judge.

AFFIRMED.

Judgment affirmed.

Anderson & Whittington, for appellants.

(1) Since this is a suit for an injuction, being an equity case this court will try the case de novo. Walsh v Walsh, 226 S.W. 236; Peltzer v. Gilbert, 260 Mo. 500. (2) The court erred in overruling the motion of defendant Amalgamated Meat Cutters and Butchers Workmen of North America, Local No. 88, to quash the order to show cause why a temporary injunction should not be issued against said defendant. Mayes v. United Garment Workers of America, 6 S.W.2d 333, and cases cited. (3) The court erred in indicating to plaintiff's counsel at the opening of the trial that he would permit plaintiff to take a default against defendant Amalgamated Meat Cutters and Butchers Workmen of North America, Local No. 88, and said defendant union did not waive its right to challenge the jurisdiction of the court by filing its answer herein. (4) The court never acquired any jurisdiction over said defendant Union. Mayes v. United Garment Workers of America, supra. (5) The plaintiff is not entitled to recover because Daniel Kohn, record owner of thirty-eight shares of stock in the plaintiff corporation which was incorporated ten days before the institution of this suit (the remaining two shares having been delivered, one to the wife of Kohn and the other to an employee, both without consideration) having operated said meat market about two years prior to such incorporation, does not come into court with clean hands. Wainscott v. Strode, 237 S.W. 196; Primm v. White, 126 Mo.App. 594; Peltzer et al. v. Gilbert, 260 Mo. 500. (6) The court erred in admitting evidence with reference to transactions, happenings and things prior to June 3, 1924, the date on which plaintiff was incorporated; and erred in its refusal to strike out all of such testimony at the request of defendants. (7) The findings of the court and the decree rendered and entered thereon are against the evidence, against the weight of the evidence against the law under the evidence. Root v. Anderson, 207 S.W. 255; City v. Gloner, 210 Mo. 502; Clothing Co. v. Watson, 168 Mo. 133; Hamilton Brown Shoe Co. v. Soxey, 131 Mo. 212; In re William H. Heffron et al., 179 Mo. App., 639. (8) The findings of the court and the decree rendered and entered thereon are in violation of section 4, article 2 of the Constitution of the State of Missouri, 1875, in that it tends to deprive the defendants herein of their natural right to life, liberty and the enjoyment of the gains of their own industry, which are guaranteed by said section 4 of article 2 of said Constitution. City v. Gloner, 210 Mo. 502, and cases cited. (9) The findings of the court and the decrees rendered and entered thereon is in violation of section 30 of article 2 of the Constitution of the State of Missouri, 1875, in that it tends to deprive these defendants of the right to life, liberty and property without due process of law, which is expressly guaranteed by said section 30 of article 2 of the Constitution of Missouri. City v. Gloner, supra, and cases cited. (10) The findings of the court and the decree rendered and entered thereon are in violation of the first amendment to the Constitution of the United States in that it tends to deprive these defendants of the freedom of speech which is expressly guaranteed by the first amendment to the Constitution of the United States. (11) The findings of the court and the decree rendered and entered hereon are in violation of the fifth amendment to the Constitution of the United States in that it tends to deprive these defendants of life, liberty and property without due process of law, all of which are expressly guaranteed by the said fifth amendment to the Constitution of the United States. (12) The findings of the court and the decree rendered and entered thereon are in violation of the fourteenth amendment to the Constitution of the United States in that said findings and decree tend to abridge the privileges and immunities of these defendants and tend to deprive these defendants of liberty and property without due process of law and deny to these defendants the equal protection of the laws, all of which rights are expressly guaranteed by the said fourteenth amendment to the Constitution of the United States. Clothing Co. v. Watson, 168 Mo. 133. (13) Under the pleadings and all of the evidence in this case the findings and decree of this court should have been in favor of the defendants. Peltzer v. Gilbert, 260 Mo. 500.

Albert E. Hausman for respondent.

(1) This court has jurisdiction of this appeal. City of St. Joseph v. Georgetown, 8 S.W.2d 979; Aufderheide v. Polar Wave I. & F. Co., 4 S.W.2d 776. (2) Whether the trial court erred or otherwise in overruling the motion to quash order to show cause issued against Amalgamated Meat Cuters and Butchers Workmen of North America, Local No. 88, the point was waived by answering over. Newcomb v. Railroad, 182 Mo. 687; Kepley v. Park Circuit Realty Co., 200 S.W. 750; Riley Penn. Oil Co. v. Symmonds, 195 Mo.App. 111; Shaffer v. Chi. R. I. & P. R. R., 300 Mo. 477; Ames v. Gilmore, 59 Mo. 537; F. Mitchell & Bro. v. Railton, 45 Mo.App. 273; Patrick Donohoe v. Bragg, 49 Mo.App. 273; State ex rel. Kansas City v. Trimble, 262 S.W. 357. (3) There is no constitutional question raised by the pleadings or by the evidence. If such question was raised by the motion to quash the order to show cause, that question was waived by answering over without again raising the question when the motion was overruled. Same authorities under point 2. (4) The question of jurisdiction over Amalgamated Meat Cutters and Butchers Workmen of North America, Local No. 88, is not in this case. All questions of defect or misjoinder of parties were waived when answers were filed omitting such defences. Ames v. Gilmore, 59 Mo. 537; F. Mitchell & Bro. v. Railton, 45 Mo.App. 273. (5) Service upon Wentz, the secretary-treasurer-business representative; Charles Leonard, business agent, and William Geddell, captain of the pickets, was sufficient to bring Local No. 88 before a court of equity for injunctive relief. Oakes on Organized Labor, page 122; American Federation of Labor v. Bucks Stove & Range Co., 37 Wash. 154; American Steel Co. v. Wire Drawers Union, 99 F. 598; Hughes v. Motion Picture Machine Op., 282 Mo. 304. (6) Plaintiff will not be debarred from relief because at the beginning of the picketing, Daniel Kohn, president of plaintiff, undertook to counteract the ill effect of defendants' wrongful acts. Berry Foundry Co. v. International Molders Union, 177 Mo.App. 84. (7) The finding of the court and the decree are in accord with the law and the evidence. Hughes v. Motion Picture Machine Operators, 282 Mo. 304. (8) The injunction should go against Wentz, Leonard, Geddell and all their associates, and confederates, members of Local Union No. 88. Clarkson v. Laiblan, 178 Mo.App. 708.

SUTTON, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

This is an injunction suit brought by plaintiff to enjoin the picketing by defendants of his place of business, which is a retail grocery store and butcher shop, called the Joe Dan Market, located at 4113 Easton Avenue, in the city of St. Louis. Upon the filing of the petition, an order to show cause issued. On July 31, 1924, upon proper hearing, a temporary restraining order issued. On June 1, 1925, upon final hearing, judgment was given perpetually enjoining the picketing, and from this judgment defendants appealed to the Supreme Court, but that court finding itself without jurisdiction of the cause transferred it to this court. The opinion transferring the cause is reported in 13 S.W.2d 641.

The defendants contend here that the evidence shows a peaceful picketing of the plaintiff's premises in support of a valid grievance which the defendant union claimed to have against Daniel Kohn as owner and operator of the Joe Dan Market, and urge that this court, exercising its prerogative as a court of equity, should review the evidence, and reverse the judgment.

Prior to the events involved in this suit, Daniel Kohn had been a resident of the city of St. Louis for about twenty-five years, and for a year or two had operated a butcher shop and grocery store at 4113 Easton Avenue, using the trade name "Joe Dan Market." On June 3, 1924, he incorporated his business, the incorporators being Daniel Kohn, his wife and Arthur O'Donnell. Kohn had been acquainted with defendants Geddell, Leonard, and Wentz for some time, and knew Leonard as the business agent of defendant Amalgamated Meat Cutters and Butchers Workmen of North America, Local Union No. 88, and knew the defendant Wentz as secretary and treasurer of the union, and made the acquaintance of defendant Geddell as chief in charge of the men and women who were picketing his place of business. Arthur O'Donnell was a meat cutter, who had been in the employ of Kohn from January, 1924, at a wage of $ 45 per week. The union scale of wages was $ 37.50 per week. O'Donnell was not a member of the union. When the Joe Dan Market was incorporated, on June 3, 1924, Arthur O'Donnell, who became one of the incorporators, remained as an employee and meat cutter at the same salary, to-wit, $ 45 per week. On May 22, 1924, suddenly and without any previous warning to come, Leonard, Geddell, and Wentz, accompanied by other men whose names...