Rosling v. Seattle Bldg. and Const. Trades Council

• Decision Date: 05 September 1963
• Docket Number: No. 36725,36725
• Citation: 62 Wn.2d 905,385 P.2d 29
• Court: Washington Supreme Court
• Parties: Rusty ROSLING and Jack Behar, Respondents, v. SEATTLE BUILDING AND CONSTRUCTION TRADES COUNCIL, an association, James K. Bender, Eugene V. Nelson, and John Doe, Appellants.

Page 905

62 Wn.2d 905

385 P.2d 29

Rusty ROSLING and Jack Behar, Respondents, v. SEATTLE BUILDING AND CONSTRUCTION TRADES COUNCIL, an association, James K. Bender, Eugene V. Nelson and John Doe, Appellants.

No. 36725.

Supreme Court of Washington, Department 2.

Sept. 5, 1963.

Bassett & Donaldson, Richard P. Donaldson, Seattle, for appellants.

Rosling, Williams, Lanza & Kastner, Henry E. Kastner, Seattle, for respondents.

RYAN, Judge pro tem.

The appellants, who were the defendants in the cause before the superior court, appeal from a judgment dated April 20, 1962, whereby they were permanently enjoined from picketing '* * * plaintiffs' establishment[385 P.2d 30] at 615-27 Queen Anne Avenue, Seattle, Washington * * *,' and by which respondents were awarded damages in the sum of $100.

The respondents, under the name Jack Behar Construction Company, were engaged in doing certain construction work to an apartment building which they leased and operated at the above-stated address. They had hired approximately 25 building trades employees, none of whom was a member of appellant Seattle Building and Construction Trades Council, or any of its affiliates. These employees were paid wages substantially below the prevailing union scales in the Seattle area, and received no fringe benefits. However, there was no dispute between them and the respondents, relative to wages or other benefits.

After first having advised respondents of their intentions, by letter dated March 20, 1962, the appellants commenced picketing respondents' premises, on or about March 22, 1962. The picketing was peaceful and no attempt was made to secure a collective bargaining agreement, nor to compel union affiliation by the employees. The work was continued, but certain construction suppliers and their employees ceased delivery of materials to the job, and commercial tenants of the respondents complained of the picketing because of damage to their business. A temporary injunction had been issued April 13, 1962.

This case was submitted to the trial court on an agreed statement of facts. One of the stipulated facts was as follows:

'14. Plaintiffs have commitments under which the building should be completed before the end of April, 1962.'

This fact, which was adopted by the trial court in its findings, is unchallenged on this appeal, and appears to follow and be based upon the allegation in respondents' complaint that:

'It is imperative that plaintiffs complete the construction and repair work now in progress on said building as soon as possible and before the end of April, 1962.'

The injunction issued by the trial court is narrow in scope and restricted to the specific premises named. The stipulated facts indicate that it was necessary to complete the construction project before the end of April, 1962, which is now approximately one year past. Although the record does not disclose the present status of the construction work, it does suggest, and it may well be reasonably assumed, that it has now been completed, and that there is no remaining controversy between the parties.

This poses a question which was not before the trial court, because it did not then exist, nor was it raised in the briefs, and at best was only casually and indirectly referred to by counsel in argument before this court. However, we must now consider it, because

'We have repeatedly held that we will not review a proceeding or cause which has become moot. * * *' State ex rel. Jones v. Byers, 24 Wash.2d 730, 733, 167 P.2d 464, 466 (1946).

In State ex rel. Johnston v. Tommy Burns, Inc., 188 Wash. 263, 264, 62 P.2d 47, 48 (1936), we said:

'Although respondents also urge us to decide this question upon the merits, we decline to do so. The question is purely academic, and this court is not required to pass upon such questions. Courts will not knowingly determine moot questions, however much both parties desire such determination. Holly-Mason Hardware Co. v. Schnatterly, 111 Wash. 29, 189 P. 545; State ex rel. Burnham v. Superior Court, 180 Wash. 519, 41 P.2d 155. See, also, Bellingham American Publishing Co. v. Bellingham Publishing Co., 145 Wash. 25, 258 P. 836.'

In State v. International Typographical Union, 57 Wash.2d 151, 356 P.2d 6 (1960), an action arising out of a jurisdictional dispute between two unions, we reiterated the rule that we will not take jurisdiction to decide moot cases, citing Hansen v. West Coast Wholesale Drug Company, 47 Wash.2d 825, 827, 289 P.2d 718, 720 (1955), wherein we said that:

'* * * A moot case is one which seeks to determine an abstract question which does not rest upon existing facts or rights. * * * This court refuses to take jurisdiction of moot cases.'

See, also, State ex rel. Chapman v. Superior Court, 15 Wash.2d 637, 131 P.2d 958 (1942); National School Studios, Inc. v. Superior School Photo Service, Inc., 40 Wash.2d 263, 242 P.2d 756 (1952); Friendly Finance Corporation v. Koster, 45 Wash.2d 374, 274 P.2d 586 (1954); and Brehm v. Retail Food and Drug Clerks Union, No. 1105, 4 Wash.2d 98, 102 P.2d 685 (1940).

If the construction work on the particular project here involved is now completed, as it would seem it is, neither party could gain any benefit by our either affirming or reversing the judgment of the trial court. We are unable, however, to determine conclusively from the present state of the record, whether the construction work has been completed or not. In view of this fact, we must remand the case to the trial court for entry of further findings of fact relating to this question, with directions to dismiss the appeal, if it is found that the construction is completed.

The case is remanded to the trial court, which is directed to proceed in accordance with the instructions herein contained.

OTT, C. J., and DONWORTH and HAMILTON, JJ., concur.

FINLEY, Judge (dissenting).

In the instant case it seems to me that the respondents were mainly interested in injunctive relief, and that this, in effect, put the controversy on the so-called 'equity side' of the court. However, the respondents also requested relief in damages and their costs. The trial court granted equitable relief and awarded damages plus costs. The majority, emphasizing the equity aspects, speaks of this lawsuit as being moot and cites cases of this court relative to dismissal of appeals in such instances. The majority opinion states 'If the construction work on the particular project here involved is now completed, as it would seem it is, neither party could gain any benefit by our either affirming or reversing the judgment of the trial court. * * *'

Lastly, the majority remands this case to the trial court for a determination as to whether the construction project here involved has been completed, and the trial court is directed to dismiss the action if the construction project has been completed. I think this completely overlooks...