Meier v. Speer

• Decision Date: 05 December 1910
• Parties: MEIER v. SPEER
• Court: Arkansas Supreme Court

132 S.W. 988

96 Ark. 618

MEIER v. SPEER

Supreme Court of Arkansas

December 5, 1910

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed and dismissed.

STATEMENT BY THE COURT.

John Carbaugh, who lived in Fort Smith, Arkansas, was a contractor, and engaged in the building of houses. He also was engaged in the manufacture and sale of brick. The Fort Smith Biscuit Company had instructed its president to let a contract to Carbaugh for the building of its factory and two ovens. Carbaugh was unable to procure one O'Neal, a stone contractor, to lay the foundation of the building. O'Neal refused to take the contract to lay the foundation for the reason that the masons in his employ, among whom were appellants Meier and McCauley, would not do the work if Carbaugh was to erect the superstructure. If Carbaugh had succeeded in erecting this factory, he would have made a profit of about $ 2,500. A contractor by the name of Zimmerman, who employed only union labor, had the contract for the construction of certain brick buildings for the Fort Smith Supply & Construction Company. He would have purchased the brick for these buildings from Carbaugh, but his foreman Glenn, a member of the union, told him that the union brick layers would not work them, and he could not afford therefore, to purchase them from Carbaugh. Had Carbaugh succeeded in selling the brick for these buildings to Zimmerman, he would have made a profit on them of at least $ 500.

Appellant Meier was the president of the Stone Masons' Union No 14, and appellant McCauley was its secretary. James Riddick was secretary of the Brick Layers' Union No. 8. A rule of these unions required their members to work only for those who employed union labor and on jobs where only union labor was employed. A breach of this rule by a member subjected him to a fine or suspension; the one or the other was imposed depending upon the gravity of the offense. No official boycott was declared by these unions against Carbaugh. It was attempted, but was "ruled out of order, and no attention paid to it at all."

To use the terminology of the unions, "fair" work means when the contractor, who is having the work done, employs only union mechanics, to the exclusion of all other mechanics, on the work. Carbaugh was considered by appellants as "unfair" because he employed nonunion laborers and refused to employ union labor only. For that reason appellants refused to work on buildings that he had the contract to build. When Meier, at the request of O'Neal, met with the president of the Biscuit Company and the architect for the purpose of telling them the reason why the stone masons would not put in the foundation, it was shown that, in explanation of the attitude of himself and the other members of the stone masons' union, Meier said: "Carbaugh is the man we are after." But the testimony further shows that he said, in the course of the same conversation, that "he mentioned Carbaugh because he was the only man in town that was employing nonunion workmen." The testimony, as a whole, shows conclusively that Meier had no personal ill-will or animosity against Carbaugh. Nor did any of the other appellants. Their sole reason for refusing to lay the foundation for their employer, O'Neal, on a building the superstructure of which was to be erected by Carbaugh was that Carbaugh employed to do his work nonunion labor and would not employ union labor exclusively.

Carbaugh alleged in his complaint against appellants "that they and others with whom they are associated and the unions have wrongfully, maliciously and wilfully conspired together and connived with each other and with the unions to which they belong to cripple and destroy" his brick manufacturing business and his business as a builder and contractor. He alleged that, in pursuance of such conspiracy, appellants had boycotted the use of his brick, and had refused to use them in any building upon which either they or their associates might be employed, and had refused to work upon any building or its foundation where plaintiff's brick were to be used or for the building and erection of which plaintiff had the contract. The complaint alleges that the loss to Carbaugh of the contract to build the factory for the Fort Smith Biscuit Company and the loss of the sale of the brick to the Fort Smith Supply and Construction Company, mentioned above, was a direct and proximate result of the unlawful conspiracy and boycott instituted by appellants to destroy Carbaugh's business. It concludes with a prayer for damages in the sum of $ 3,000.

The answer denied all the material allegations. The above is a condensed statement of the pleadings and the facts upon which the cause was submitted to the jury. The appellants prayed for an instruction directing a verdict in their favor, which was refused. A verdict was returned in favor of Carbaugh in the sum of $ 2,233. Judgment was rendered against appellants for that sum, and they have duly prosecuted an appeal to this court. Carbaugh has since died, and the action was revived in the name of his administrator, Speer. Other facts stated in opinion.

Judgment reversed and cause dismissed.

Mechem & Mechem, for appellants.

The court should have directed a verdict for the appellants. The evidence utterly fails to bring appellants under any legal liability to appellee. The manifest, declared and undeniable purpose of appellants, acting through their unions, as appears by the evidence, was to advance their own interests, which was lawful, and their acts were but the lawful exercise of personal rights to control their own labor. 26 Cyc. 819; 4 Metc. 111; 106 Mass. 14; 19 R. I. 255; 54 Minn. 223; 170 N.Y. 315; 136 N.C. 633; 49 S.E. 177; 24 Pa. 308; 169 F. 263; 98 P. 1027.

Winchester & Martin, for appellee.

The peremptory instruction was rightfully refused. The evidence clearly discloses a conspiracy on the part of appellants, acting through their unions, to inflict injury upon the appellee in his business. The individual acts may not in themselves be unlawful or hurtful and forbidden by law, but, when put together into a plan or conspiracy to injure, the parts as well as the plan becomes unlawful. 196 U.S. 395; 49 Law. Ed. 523; 195 U.S. 194; 49 Law. Ed. 154; 208 U.S. 496; 52 Law. Ed. 294; 175 U.S. 211; 44 Law. Ed. 136; 23 L. R. A. 588; 64 Mich. 252; 80 Tex. 400; 106 N.Y. 669; 176 Ill. 608; 43 L. R. A. 800; L. R. 15 Q. B. Div. 476; L. R. 6 Q. B. Div. 333; 98 P. 1027; 193 U.S. 38; 48 Law. Ed. 608; 48 L. R. A. 90, and authorities cited; 38 L. R. A. 197; 43 L. R. A. 803; 83 F. 912; 47 La. 214; 27 L. R. A. 416.

WOOD J., KIRBY, J., not participating.

OPINION

WOOD, J. (after stating the facts).

The court should have directed a verdict in favor of appellants. We do not discover any evidence in the record of a conspiracy upon their part to injure the business of Carbaugh. No attempt was made by them, either individually or collectively, to dissuade O'Neal, for whom they were working, from entering into the contract with Carbaugh to lay the foundation of the Fort Smith Biscuit Company's factory. Nor does the evidence show any effort upon the part of these appellants to prevent Zimmerman from buying brick from Carbaugh. Certainly there is no evidence in this record that these appellants, severally or in combination, used any violence, or any threats, intimidation or coercion of any character, whereby to prevent Carbaugh from securing the contract to build the factory for the Fort Smith Biscuit Company, nor from securing the contract for the sale of brick to Zimmerman for the Fort Smith Supply & Construction Company. Giving the evidence its strongest probative force in favor of appellee, it only warrants the conclusion that appellants had agreed among themselves, as members of union labor organizations, that they would not work for Carbaugh because he was on what they term the "unfair list," that is he employed nonunion men when he could get union men for the same work.

There is no evidence that the union labor organizations took any official action towards "boycotting" Carbaugh because of his attitude towards union labor. On the contrary, the evidence is that such action was "attempted but ruled out of order." There is no evidence of any conspiracy or confederation among appellants to injure Carbaugh's business by boycotting him, i. e., by threatening injury to the trade, business or occupation of those who might have or who intended to have business relations with him. True, O'Neal testified that but for the "interference of the stone masons' union and some of its members, Meier and McCauley, "he would have put in the foundation for John Carbaugh," but he further testified to the facts which, in his mind, constituted the interference, which were that Meier and McCauley said, when he asked them about it, that they and the members of the stone masons' union would not work for him in laying the foundation of the biscuit company factory if Carbaugh should have the contract to build the superstructure. He testified that these men had been in his employ twelve or fifteen years, that he did not wish to change his men with the job, "that it would have put him in bad standing, and that he would have been in the same place Carbaugh is, had he done so. But the conclusion of the witness O'Neal as to what might have been his standing with union labor and what might have been the effect upon his business, had he accepted the contract and laid the foundation for Carbaugh with other than union labor, is not based upon any evidence in this record showing that appellants by any word or act on their part threatened him with any such consequences as he says he apprehended.

The language employed by them...