Kennedy v. Real Estate Salesmen Local 154A

• Decision Date: 04 December 1958
• Docket Number: I,No. 34607,No. 154,154,34607
• Citation: 53 Wn.2d 223,332 P.2d 939
• Court: Washington Supreme Court
• Parties: Don KENNEDY and John Kennedy, d/b/a Don Kennedy Real Estate, Appellants, v. REAL ESTATE SALESMEN LOCAL 154A, a division of Trucking & Equipment Clerks, Report Clerks & Clerical Employees, Local Unionnternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor and CIO, et al., Respondents.

Page 223

53 Wn.2d 223

332 P.2d 939

Don KENNEDY and John Kennedy, d/b/a Don Kennedy Real Estate Appellants, v. REAL ESTATE SALESMEN LOCAL 154A, a division of Trucking &amp Equipment Clerks, Report Clerks & Clerical Employees, Local Union No. 154, International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers, affiliated with the American Federation of Labor and CIO, et al., Respondents.

No. 34607.

Supreme Court of Washington, Department 2.

Dec. 4, 1958.

Peyser, Cartano, Botzer & Chapman, and Stephen C. Watson, William H. Botzer, Seattle, for appellants.

Bassett, Davies & Roberts, George H. Davies, Richard P. Donaldson, Seattle, of counsel, for respondents.

PER CURIAM.

Appellants, plaintiffs below, who engage in a general real-estate business, appeal from an interlocutory order denying their application for a temporary injunction pending trial.

Appellants, brothers and partners, sued to enjoin the respondent labor union, Real Estate Salesmen Local 154A, a division of Trucking and Equipment Clerks, Report Clerks and Clerical Employees, Local Union No. 154, from picketing their office. On November 20, 1957, an ex parte restraining order prohibiting the pickets issued, and respondents were ordered to show cause why a temporary injunction pendente lite should not issue.

Thereafter this matter was heard upon both affidavits and oral evidence. Respondents offered this hearing to consider the trial upon the merits, but appellants refused. The principal dispute was whether appellants' salesmen, eleven in number, were employees or independent contractors. Upon this point, the evidence was in sharp conflict, but the court found them to be employees. That finding is:

'While the relationship between plaintiffs and their real estate salesmen has some aspects of independent contract relationship, this is true only because of the nature of the real estate brokerage business; but they are, nevertheless, employees within the meaning of R.C.W. 49.32.010 et seq., R.C.W. 49.36.010 and R.C.W. 49.36.020.'

No useful purpose would be served by narrating the evidence, for it is sufficient to say that it was in sharp conflict upon all material issues.

The court, on January 17, 1958, made findings of fact denying a temporary injunction and dissolved the temporary restraining order. Defendants' answer was served December 11, 1957, and filed December 14, 1957, but appellants have done nothing to bring the case on for trial. The most we could do is to temporarily enjoin the acts complained pending the trial to prevent irreparable damage in the interval. Had the case been timely noticed for trial, it could have been tried before now, and the instant appeal rendered moot.

While Rule on Appeal 14(3), 34A Wash.2d 20, authorizes an appeal from an order granting or denying a temporary injunction, nevertheless, an appeal from an order denying a temporary injunction is authorized only if there is a finding of insolvency of the party sought to be enjoined. There is no such finding here.

This is a constitutional court created by the Washington constitution, Art. IV, and its jurisdiction, both original and appellate, is derived from Art. IV, § 4. Assuming for present purposes, without so deciding, that the legislature could validly authorize an appeal from an interlocutory order denying or granting a temporary injunction in a suit involving a labor dispute, as it has attempted to do in RCW 49.32.080 that does not mean that we should decide the merits of such a controversy in advance of trial.

Moreover, § 2 of the rule-making act (RCW 2.04.200; Laws of 1925, Ex.Sess., chapter 118, § 2, p. 187) provides:

'When and as the rules of courts herein authorized shall be promulgated all laws in conflict...