Smith v. American Guild of Variety Artists

• Decision Date: 13 December 1966
• Docket Number: 17856.,No. 17857,17857
• Citation: 368 F.2d 511
• Parties: William SMITH, Doing Business as Smith Entertainment Agency and as Smith & Dale Circus, Appellant, v. AMERICAN GUILD OF VARIETY ARTISTS, Appellee. AMERICAN GUILD OF VARIETY ARTISTS, Appellant, v. William SMITH, Doing Business as Smith Entertainment Agency and as Smith & Dale Circus, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

368 F.2d 511 (1966)

William SMITH, Doing Business as Smith Entertainment Agency and as Smith & Dale Circus, Appellant, v. AMERICAN GUILD OF VARIETY ARTISTS, Appellee.

AMERICAN GUILD OF VARIETY ARTISTS, Appellant, v. William SMITH, Doing Business as Smith Entertainment Agency and as Smith & Dale Circus, Appellee.

Nos. 17857, 17856.

United States Court of Appeals Eighth Circuit.

November 18, 1966.

Rehearing Denied December 13, 1966.

Conrad J. Carr, Minneapolis, Minn., for appellant. Jerome G. Raidt, Minneapolis, Minn., was with him on the supplemental brief.

William Power Maloney, New York City, for appellee, and filed supplemental brief.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

We filed our opinion in this case, reported at 349 F.2d 975, on August 9, 1965. We held that plaintiff was entitled to the recovery allowed by the jury verdict against American Guild of Variety Artists (AGVA) upon the cause of action based on wrongful interference with contract rights. Rehearing was denied September 9, 1965. On April 18, 1966, in American Guild of Variety Artists v. Smith, 384 U.S. 30, 86 S.Ct. 1283, 16 L.Ed.2d 332, the Supreme Court granted certiorari, vacated our decision and remanded in an opinion reading:

"The petition for a writ of certiorari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to that court for further proceedings in light of United Mine Workers of America v. Gibbs 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218."

It is our understanding, arrived at after careful consideration of the Supreme Court opinions in this case and Gibbs, that we are directed to apply the law as stated in Gibbs to our present case insofar as common issues are presented.

In Gibbs, as here, damages were claimed against a labor union based upon a secondary boycott under § 303 of the Labor Management Relations Act, 29 U.S.C.A. § 187, and upon a state tort action of unlawful interference with contractual relations. The Supreme Court recognized in Gibbs that the state contractual interference claim was properly joined under the doctrine of pendent jurisdiction and that state law remedies against violence and threats of violence in labor disputes can be sustained against the challenge of preemption by a federal labor law. Thus Gibbs supports our determination in our prior opinion that the court acquired jurisdiction under the pendent jurisdiction doctrine of the state contractual interference claim and that no federal preemption is established by reason of the threats of violence by AGVA.

In Gibbs, the reversal of the favorable judgment for the claimant on the contractual interference action appears to be based primarily upon the Court's determination that the standard of proof for establishing union participation, authorization and ratification of the charged unlawful acts, as prescribed by § 6 of the Norris-LaGuardia Act, had not been met. Section 6 reads:

"No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof."

The Gibbs' Court states:

"Petitioner vigorously contends that § 6 applied to the state claims in this case; that, on this record, it cannot be charged with having participated in or authorized the violence of August 15-16; and that its acts once it learned of the violence fell short of what would be necessary to show either ratification of the violence or any intent to build its picketing campaign upon the fears the violence engendered. We agree.

* * * * * *

Plainly, § 6 applies to federal court adjudications of state tort claims arising out of labor disputes, whether or not they are associated with claims under § 303 to which the section does not apply." 383 U.S. 715, 735, 737, 86 S.Ct. 1130, 1144.

The Court determined that the burden of proof imposed by § 6 had not been met and reversed the favorable judgment for the claimant.

Our best judgment is that it is the holding on this issue that brought about the remand of the case now before us.

After remand of the case to us, we invited counsel to brief and orally argue the following points:

(a) Has the § 6, Norris-LaGuardia defense, heretofore been raised either in the trial court or upon appeal?

(b) If such issue has not been raised, can the Court consider it at this time?

(c) If the defense is open for consideration, the views as to the applicability of the defense to the facts of this case should be discussed.

(d) A discussion of the effect of Gibbs upon any other aspect of this case.

AGVA has not either in the supplemental brief it has filed nor in oral argument asserted that it raised the § 6 contention in any way in the trial court or upon the appeal leading to our prior opinion. In fact, AGVA has admitted that it has not previously raised such issue. By reply brief, it states:

"The obvious answer to appellant\'s contention in his supplemental brief that 29 U.S.C. 106 has not been raised and may not be raised or considered at this time is that the Supreme Court of the United States in its order of reversal and remand in this very case * * * itself, on its own initiative raised the question of the application of that statute. Whatever United Mine Workers of America v. Gibbs * * * holds, surely the most important issue in that case and the most thoroughly discussed issue which is relevant to the instant case is the application of 29 U.S.C. 106. When the Supreme Court asked this Court to consider this case in light of the Gibbs case, it necessarily held that 29 U.S.C. 106 can be brought into the case on appeal; the Supreme Court brought the statute in.

"Apparently the Supreme Court of the United States believes the strong Federal policy behind domestic industrial peace is to overcome any technical rules of procedure and hoary general rules."

It is apparent from the record in this case before the Supreme Court that § 6 had not been considered in our prior opinion. If the failure to consider § 6 was error per se upon the record made whether or not the § 6 issue was properly before the Court, we would assume the Supreme Court would have reversed outright as it did in Gibbs.

Section 6 is either a rule of evidence or one changing the substantive law of agency. United Mine Workers of America v. Gibbs, supra, 383 U.S. p. 736, 86 S.Ct. 1130, 16 L.Ed.2d 218; United Brotherhood of Carpenters, etc. v. United States, 330 U.S. 395, 403, 67 S.Ct. 775, 91 L.Ed. 973.

In Sisco v. McNutt, 8 Cir., 209 F.2d 550, 553, we squarely held that § 6 did not deprive the district court of jurisdiction to try the action. We are still of the view that § 6 is not a jurisdictional statute.

Here, as in Sisco, the § 6 issue was not raised in the trial court. We there held that the § 6 issue, raised for the first time upon appeal, could be given no consideration, stating:

"It is only in exceptional cases that questions of law not presented to or passed upon by the trial court will be reviewed. Duignan v. United States, 274 U.S. 195, 200, 47 S.Ct. 566, 71 L.Ed. 996 and cases cited; Trapp v. Metropolitan Life Ins. Co., 8 Cir., 70 F.2d 976, 981; Helvering v. Hormel, 8 Cir., 111 F.2d 1, 5, affirmed 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037. The general and almost invariable rule is that questions not called to the attention of or ruled upon by a trial court will not be reviewed on appeal. Goldie v. Cox, 8 Cir., 130 F.2d 695, 715; Zuckerman v. McCulley, 8 Cir., 170 F.2d 1015, 1018; Hoyt v. Clancey, 8 Cir., 180 F.2d 152, 154; Barnard v. Wabash Railroad Co., 8 Cir., 208 F.2d 489. It is safe to say that this rule should be adhered to except `where the obvious result would be a plain miscarriage of justice.\' Hormel v. Helvering, 312 U.S. 552, 558, 61 S.Ct. 719, 772, 85 L.Ed. 1037. The application of the rule in this case will not produce a plain miscarriage of justice. A departure from the rule would not be justified. The defendant had his full day in court. Having made no objections to the legal theory upon which the issue of his liability was submitted to the jury, either by asking for instructions or taking exceptions to the instructions given, he is in no position to assert that the District Court committed prejudicial error in not submitting the case upon a different theory." 209 F.2d 550, 553-554.

To like effect, see Stanley v. United States, 6 Cir., 245 F.2d 427, 435. We believe that the result reached in Sisco is sound and conducive to the proper administration of justice.

Moreover, an additional obstacle is here presented. The § 6 issue was not raised or argued in any way upon the appeal resulting in our prior decision. Our Rule 11(b), in common with generally prevailing appellate rules, requires a concise statement of points relied upon for reversal.

Questions not raised, briefed nor argued will ordinarily be given no consideration by an appellate court. Trailmobile Co. v. Whirls, 331 U.S. 40, 50, 67 S.Ct. 982, 91 L.Ed. 1328; Pacific States Box & Basket Co. v. White, 296 U.S. 176, 186, 56 S.Ct. 159, 80 L.Ed. 138; Fleming v. Munsingwear, 8 Cir., 162 F.2d 125, 127; Anderson v. Federal Cartridge Corp., 8 Cir., 156 F.2d 681, 683; Cohen v. United States, 8 Cir., 142 F.2d 861, 863; 5 Am.Jur.2d, Appeal and Error § 648. See United Mine Workers of America v. Gibbs, supra, n. 29, pp. 737-738, 86 S.Ct. 1130, 16 L.Ed.2d 218; Dick v. New York Life Ins. Co., 359 U.S. 437, 445, 79 S.Ct. 921, 3 L.Ed.2d 935; United States v. Spector, 343 U.S. 169, 172, 72 S.Ct. 591, 96 L.Ed. 863; United States v. New York Tel. Co., 326 U.S. 638,...