Parvey v. Humane Soc. of Mo.

• Decision Date: 21 February 1961
• Docket Number: No. 30443,30443
• Citation: 343 S.W.2d 678
• Parties: Edgar PARVEY et al., Appellants (Plaintiffs), v. HUMANE SOCIETY OF MISSOURI, a corporation, Respondent (Defendant).
• Court: Missouri Court of Appeals

Page 678

343 S.W.2d 678

Edgar PARVEY et al., Appellants (Plaintiffs), v. HUMANE SOCIETY OF MISSOURI, a corporation, Respondent (Defendant).

No. 30443.

St. Louis Court of Appeals, Missouri.

Feb. 21, 1961.

Dowd & Dowd, Edward L. Dowd, William L. Mason, Jr., St. Louis, for appellants.

R. Forder Buckley, Buckley & Campbell, F. Douglas O'Leary, Charles F. Hamilton, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondent.

WOLFE, Judge.

This is an action brought by twenty-eight licensed veterinarians to restrain the Humane Society of Missouri, a corporation, from conducting an animal clinic where a charge is made for certain services and medicine. Six of the plaintiffs withdrew from the cause in the Circuit Court. The defendant moved to dismiss the plaintiffs' petition on the ground that the petition failed to state any claim upon which relief could be granted to the plaintiffs. This was sustained, and the remaining twenty-two plaintiffs appealed to this court. Since that time, by consent of the parties, one plaintiff-appellant has withdrawn, leaving as plaintiffs-appellants twenty-one veterinarians. The American Humane Association, by leave, has filed a brief as amicus curiae.

The petition, after alleging the corporate existence of the Humane Society of Missouri, and alleging that the plaintiffs were duly licensed veterinarians, continues in paragraph 3 thereof as follows:

'3. The plaintiffs are presently practicing veterinary medicine, both as a profession and occupation, and from such practice derive their income and financial support, and, during the course of their practice, the plaintiffs, and each of them, have developed and now possess property rights in large and valuable practices in the treatment of animals, said animals being in most part the possessions and property of residents of the City and County of St. Louis.

'4. The defendant corporation, when originally organized, was created by the extant laws of the State of Missouri, dealing with and treating of the incorporation of benevolent associations, and at the present time exists as an ostensibly benevolent and non-profit association devoted to the humane treatment of humans and animals alike.

'5. Article II of the Amended and presently effective Articles of Agreement, entitled, 'Objects', reads as follows in haec verba:

"The objects of this Society are to provide effective means for the prevention of cruelty to children of fourteen years of age and under, and to animals in the State of Missouri, and to aid in the enforcement of all laws which are, or may be hereinafter enacted, for the prevention of cruelty to living creatures, and to educate the people by means of lectures, the dissemination of literature and other effective ways in the principles of Kindness to animals and to conduct free animal clinics.'

'6. Other than the powers detailed in Article II of the Articles of Agreement as set forth above, the defendant corporation has no right to engage in the practice of veterinary medicine, or has it the right or power to practice veterinary medicine for profit, or has it the right or power to maintain an animal clinic, veterinary hospital and veterinary staff for the treatment of diseased and injured animals other than on a free, non-profit, and non-charge basis.

'7. The defendant corporation is not a registered or licensed veterinarian as that term is utilized in Chapter 340, Revised Statutes of Missouri, 1953, said chapter treating of and dealing with and controlling the practice of veterinary medicine in the State of Missouri.

'8. Contrary to the provisions of said Chapter 340 R.S.Mo.1953, and in excess of the powers granted to it by the State of Missouri as set forth and described in the Articles of Agreement and amendments thereto, the defendant corporation has engaged, and is now engaged, in the illegal and unlawful practice of veterinary medicine, and has engaged and is now engaging in the practice of veterinary medicine for profit beyond the scope of its charter, and in direct and unfair and illegal competition with the plaintiffs in the following particulars:

'a. The defendant corporation has, and is presently, practicing veterinary medicine as a corporation in violation of the provisions of Chapter 340, R.S.Mo.1953.

'b. The defendant corporation has, and is presently, engaged in the practice of veterinary medicine for profit by charging fees of the public for services rendered by its staff to diseased and injured animals.

'c. The defendant corporation has engaged, and does engage and employ and staff a group of veterinary doctors, both licensed and unlicensed, in direct competition with the plaintiffs, said staff performing all kinds and manner of veterinary surgery and medicine for which charges are made to the owner of such animals treated, such charges, or a percentage thereof, being turned over to the defendant corporation, which derives a profit therefrom.'

There are other allegations following these relating to the press and radio and television programs of the defendant corporation; and allegation that the defendant corporation neglects to provide free animal clinics and emergency treatments; and a further allegation that it advertises twenty-four hour emergency service but that the service is confined only to the daylight hours. It continues:

'As a result of the illegal and ultra vires acts of the defendant corporation as set forth above, the plaintiffs have suffered, and are now suffering, and will suffer irremediable and irreparable injury to their profession, occupation, and property rights in said profession and occupation for the reason that:

'a. Said acts have caused, and are...