Shaltupsky v. Brown Shoe Co.

• Decision Date: 02 March 1943
• Docket Number: 38290
• Citation: Shaltupsky v. Brown Shoe Co., 168 S.W.2d 1083, 350 Mo. 831 (Mo. 1943)
• Parties: David Shaltupsky, Appellant, v. Brown Shoe Company, a Corporation, First National Bank of Cape Girardeau, Missouri, a Corporation, and Clyde D. Harris, an Individual, Respondents
• Court: Missouri Supreme Court

168 S.W.2d 1083

350 Mo. 831

David Shaltupsky, Appellant, v. Brown Shoe Company, a Corporation, First National Bank of Cape Girardeau, Missouri, a Corporation, and Clyde D. Harris, an Individual, Respondents

No. 38290

Supreme Court of Missouri

March 2, 1943

Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.

Affirmed.

Dubinsky & Duggan for appellant.

Plaintiff's petition sets forth a cause of action in accordance with the statutes of this State. It contains all the necessary ingredients and elements that constitute a good and sufficient cause of action. Secs. 915, 916, R. S. 1939; Stewart Land Co. v. Perkins, 234 S.W. 653; Titus v. Tolle, 223 S.W. 885; Anderson v. Lusk, 202 S.W. 304; Barnett v. Ground, 263 S.W. 836; Baldridge v. Ryan, 260 S.W. 536.

Nagel Kirby, Orrick & Shepley, Rush H. Limbaugh and Benson C. Hardesty for respondents.

(1) Paragraphs 1-8 and 15-17 plus allegations to the effect that defendants conspired to deprive defendant of its credit with defendant Brown Shoe Company were intended to constitute a cause of action in the first petition herein, but were insufficient and demurrable. R. S. 1939, secs. 915, 916; W. B. Stewart Land Co. v. Perkins, 234 S.W. 653, 290 Mo. 194; Bohn Mfg. Co. v. Northwestern Lumbermen's Assn., 21 L. R. A. 337; Heim Brewing Co. v Belinder, 97 Mo.App. 64, 71 S.W. 691; Bill of Rights -- First 10 Amendments of Fed. Const. also Secs. 1-32 of Art. 2 of Mo. Const.; Cornellier v. Haverhill Shoe Manufacturers Assn., 109 N.E. 643; Willett v. Herrick, 6 L. R. A. (N. S.) 1067; Dietrich v. Cape Brewery & Ice Co., 286 S.W. 38, 315 Mo. 507; McCarty v. Hemker, 4 S.W.2d 1088. (2) Nor did the addition of paragraphs 13 and 14 thereto cure such insufficiency so as to make the second petition state a cause of action, but that petition also was insufficient and demurrable. 25 C. J. S. 108, sec. 20; Piper v. Allen, 219 S.W. 98; Leonard v. Dougherty, 296 S.W. 263, 221 Mo.App. 1056. (3) Nor did the further addition of paragraphs 9-12 thereto cure that insufficiency so as to make the third petition sufficient, but this third petition, now under review as a composite whole, is utterly insufficient and the final judgment sustaining the demurrer thereto should be affirmed. W. E. Stewart Land Co. v. Perkins, 234 S.W. 653, 290 Mo. 194; Johnson v. E. Boston Savs. Bank, 195 N.E. 727, 290 Mass. 441; DesLauries v. Shea, 13 N.E.2d 932; Fleming v. Dane, 22 N.E.2d 609; Neustadt v. Employers' Liability Assur. Corp., 21 N.E.2d 538, 303 Mass. 321, 123 A. 134; Morton v. Weet, 254 N.Y.S. 655, 142 Misc. 473.

OPINION

Gantt, J.

Action by plaintiff on the theory that defendants entered into a conspiracy to injure his business as a shoe merchant in Cape Girardeau, Mo. The trial court sustained the demurrers of defendants to three different petitions on the ground that said petitions failed to state facts sufficient to constitute a cause of action. On the court sustaining the demurrers to the third petition and entering judgment for defendants, plaintiff appealed.

"Civil conspiracy" is generally defined to be an agreement to do an unlawful act or a lawful act in an unlawful manner. [Jackson v. Scott County Milling Co., 118 S.W.2d 1054, 1056; 15 C. J. S., p. 1001; 12 C. J., p. 583; 11 Am. Jur., p. 578; Harelson v. Tyler, 281 Mo. 383, 219 S.W. 908, 913; 8 Words & Phrases, Permanent Edition, p. 754.]

The material part of the third (second amended) petition follows:

"Plaintiff further states for a great number of years he was and is engaged in a retail shoe business in the City of Cape Girardeau, State of Missouri; that for many years prior to July 1, 1940, he transacted business with the Brown Shoe Company and held their exclusive license for certain retail merchandise manufactured by them under the defendant's exclusive trademark and trade-name.

"Plaintiff further states that during the said years, from approximately 1930 to 1940, he enjoyed friendly and amicable relations with defendant, Brown Shoe Company, and was extended a line of credit that was commensurate with plaintiff's particular type of business.

"Plaintiff states that on or about November 1, 1939, all of the defendants conspired with one another and against this plaintiff, and for the purpose of depriving this plaintiff of business and more particularly the exclusive trade-marks and brands of the defendant, Brown Shoe Company.

"Plaintiff further states that said conspiracy between all of the defendants took place between November 1, 1939, and on or about August 1, 1940, and that on or about August 1, 1940, as a result of the conspiracy aforesaid by all of the defendants, the plaintiff was deprived of the right to sell the defendant's exclusive brands and trade-marked shoes.

"Plaintiff further states that during the time herein mentioned, the defendants, Harris, as President of the defendant bank, advised the defendant, Brown Shoe Company, to cease and desist from transacting business with the plaintiff, and said advice was acted upon by the defendant, Brown Shoe Company, and the business relationship existing by and between the defendant, Brown Shoe Company, and plaintiff, for some 15 years was terminated, all to the damage of plaintiff.

"Plaintiff further states that the advice given by the defendants Harris and the bank, and followed and indulged in by the defendant, Brown Shoe Company, was capricious and arose from and out of plaintiff's refusal to follow certain civic instructions delivered to plaintiff by the defendants Harris and the bank, and upon plaintiff's refusal to obey said instructions, plaintiff was threatened with the cancellation of his right and privilege of selling the products and highly publicized trade brands of the defendant Brown Shoe Company, and the defendant, Brown Shoe Company, did execute, fulfill and carry out the threats of cancellation theretofore made by the defendants, Harris and the bank, by refusing to further sell any of its products to plaintiff.

"Plaintiff further states the conspiracy of the defendants further contemplated that the defendants, Harris and the bank, were to cancel and terminate, and did cancel and terminate the banking relations existing over a long period of time by and between plaintiff and the defendant Harris, and the defendant bank that Harris was president of, and that the termination of banking relationship heretofore mentioned was to be and was seized as an alibi, excuse and reason for an immediate suit without notice by the defendant, Brown Shoe Company, upon their account of $ 358.81, owed by plaintiff to defendant, Brown Shoe Company, notwithstanding the fact that at various times the plaintiff owed defendant, Brown Shoe Company, thousands of dollars during the years of business relationship existing between plaintiff and defendant, Brown Shoe Company.

"Plaintiff further states the defendants knew that as a result of said suit being filed as conspired and agreed to by the defendants, that plaintiff's credit would be jeopardized and cut off, and that as a result of plaintiff's credit being cut off, plaintiff would be unable to continue in business, except under the most hazardous of conditions, if plaintiff could continue in business at all.

"Plaintiff further states that the said conspiracy so entered into by the defendants to terminate the hitherto friendly relations between plaintiff and defendant, Brown Shoe Company, was contrary to and in violation of the usual and customary reasons and grounds terminating business relations of long standing, and that said termination of the business relations between plaintiff and defendant Brown Shoe Company was done with the sole thought in mind to crush and ruin plaintiff in the business he had engaged in for many years; which thought, to crush and ruin plaintiff's business, had actuated the conduct of the defendant, Harris and First National Bank, for many years past and said conspiracy found fruition, and was culminated when defendant, Brown Shoe Company, agreed to and became part of said conspiracy to ruin and wreck plaintiff's business.

"Plaintiff further states that said conspiracy of the defendants was illegal, unjust, discriminatory and arbitrary, all to plaintiff's damage.

"Plaintiff further states as a result of the conspiracy of these defendants, his business was virtually ruined and his good-will was destroyed, and he has been handicapped and harassed ever since in his endeavor to continue his business of many years standing; and that said business so ruined by the defendants was of the value of $ 20,000.00.

"Plaintiff further states that the conduct of the defendants was malicious and premeditated.

"Wherefore, plaintiff prays judgment against the defendants in the sum of $ 20,000.00 actual damages, and $ 30,000.00 punitive damages, and for costs."

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