Koss v. Continental Oil Co.

• Decision Date: 28 January 1944
• Docket Number: 27908.
• Citation: 52 N.E.2d 614,222 Ind. 224
• Parties: KOSS v. CONTINENTAL OIL CO. et al.
• Court: Indiana Supreme Court

52 N.E.2d 614

222 Ind. 224

KOSS v. CONTINENTAL OIL CO. et al.

No. 27908.

Supreme Court of Indiana

January 28, 1944

Appeal from Jasper Circuit Court; Robert E. Thompson Special judge.

Harry P. Sharavsky, of Gary, Guy W. Slaughter, of Hammond, and Emmet M. LaRue, of Rensselaer, for appellant.

Oscar B. Thiel, of Gary, and Crumpacker & Friedrich, of Hammond, for appellees.

SWAIM Justice.

This is an appeal from an interlocutory order denying appellant's petition for a temporary mandatory injunction.

All of appellant's contentions may be considered under the assignment of error that the court erred in denying the plaintiff a temporary injunction. Goldsmith et al. v. City of Indianapolis, 1935, 208 Ind. 465, 196 N.E. 525.

Appellant owned and operated a filling station in Gary, Indiana. She had a contract with the Continental Oil Company for the purchase from said company of the gasoline and oils required in the operation of said station. She instituted this action against the said company and the other appellees, including General Drivers, Warehouse and Helpers Union, Local No. 142 and the business agent of said union alleging that all of the appellees except said Oil Company entered into a conspiracy to coerce and thereby prevent said Oil Company from carrying out the terms of its contract with the appellant and further conspired to prevent the appellant from obtaining gasoline and oil from any other source; and that unless appellees were restrained the appellant would be forced out of business and irreparably damaged.

Appellant first contends that the action of the appellees was in violation of § 23-107, Burns' 1933, § 4773, Baldwin's 1934, which was 'an act to prohibit contracts or combinations of persons, firms or associations intended to prevent free competition in business' and which provided that 'any dealer * * * of supplies * * * who shall be a party * * * to any such contract, combination or arrangement, or who shall, upon the request of any party to any such contract, combination or arrangement, refuse to sell such * * * supplies * * * sold by any dealer * * * to any such person or persons who may require them in the prosecution of their said business, for the reason that said dealer * * * is not a member of a combination or association of persons, shall be guilty of conspiracy against trade.'

This statute prohibits refusals to sell only where the refusal is based on the reason that the retail dealer is not a member of the combination or association. The evidence in this case discloses that the real controversy between the appellant and the appellees was on the question of the hours which the appellant operated her filling station.

The appellant was a member of the local union which was trying to enforce uniform closing hours. The evidence showed that she tendered her resignation from the union but there was evidence to support a finding that throughout all of the period here in question she remained a member. Any refusal to sell appellant supplies, if there was any such refusal, was not for the reason she was not a member of the union but rather for the reason that she was violating the rules of the said union as to the hours she was operating her filling station.

The statute to prevent combinations in restraint of trade is not, therefore, applicable to the situation disclosed by the evidence in this case.

The appellant also contends that regardless of her rights under said statute the appellees were so violating her common-law rights that she was entitled to the equitable relief which she sought.

The granting of a temporary injunction to maintain the status quo until the final hearing rests in the sound discretion of the trial court and the exercise of this discretion will not be interfered with by this court unless it is shown that the action of the trial court was arbitrary or constituted a clear abuse of discretion. Tuf-Tread Corp. v. Kilborn, 1930, 202 Ind. 154, 172 N.E. 353.

In appeals of this character the court will consider only the evidence which tends to support the judgment. Weist v. Dirks, 1939, 215 Ind. 568, 20 N.E.2d 969.

The appellant contends that since the order denying the temporary injunction was entered on the motion of the appellees at the close of appellant's case, only the evidence most favorable to the appellant can be considered. This rule has no application to the situation presented by the record in...