Stephens v. Mound City Liverymen & Undertakers Association of St. Louis

• Decision Date: 06 December 1922
• Citation: 246 S.W. 40,295 Mo. 596
• Parties: NORA C. STEPHENS and THOMAS C. STEPHENS, Appellants, v. MOUND CITY LIVERYMEN & UNDERTAKERS ASSOCIATION OF ST. LOUIS et al
• Court: Missouri Supreme Court

246 S.W. 40

295 Mo. 596

NORA C. STEPHENS and THOMAS C. STEPHENS, Appellants, v. MOUND CITY LIVERYMEN & UNDERTAKERS ASSOCIATION OF ST. LOUIS et al

Supreme Court of Missouri

December 6, 1922

Appeal from St. Louis City Circuit Court. -- Hon. Moses Hartmann Judge.

Affirmed.

George Eigel and James T. Roberts for appellants.

(1) The public policy of this State will not permit the control of an important and necessary line of business to be placed in the hands of any body or association of persons members of that body acting in unison or under agreements. State ex rel v. Harvester Co., 237 Mo. 369; State ex rel. v Packing Co., 173 Mo. 356. (2) It is not necessary that the result of this combination should be a complete monopoly. It is sufficient for the purposes of this action that it tends to that end and tends to deprive the public from the advantages which flow from free competition. State ex rel. v. Packing Co., 173 Mo. 356; United States v. Knight, 156 U.S. 16. (3) The public policy of this State, as evidenced by its common and statutory law and the decisions of its appellate courts construing that law, was violated when the Mound City Liverymen & Undertakers' Association of St. Louis and the individual and corporate defendants bound themselves together under the agreement to restrict the hiring of hearses, horses and carriages or other equipment necessary for the conduct of a funeral, with the intent to create a monopoly and thereby control prices. State ex rel. v. Stock Exchange, 211 Mo. 181. (4) The occupation or calling of these plaintiffs as undertakers, by the means of which they earned their livelihood, is property within the meaning of the law, and as such is entitled to protection. This is aside from and entirely independent of the unlawful character of the association. The conduct of this association and the other defendants, as set forth in the petition, discloses a state of facts which makes the defendants guilty of a boycott in an effort to establish a monopoly and entitles plaintiffs to the relief sought. Door Co. v. Fuelle, 215 Mo. 422; Clarkson v. Laiblan, 178 Mo.App. 708. (5) In an action against the members and officers of an association of liverymen and undertakers for damages for conspiracy in an effort to establish a monopoly, where no theory of the case developed in the trial court, a general demurrer was improperly sustained if the petition stated a cause either under the statute or at common law. Harelson v. Tyler, 219 S.W. 908.

Jourdan, Rassieur & Pierce for respondents.

(1) A general demurrer admits only the facts which are well pleaded. It does not admit the pleader's conclusions either of law or fact. Harelson v. Tyler, 219 S.W. 912. (2) Appellants cannot sue upon one cause of action and recover upon another: If the petition is brought under a statute to recover a penalty given by statute, appellants must recover the penalty or not at all. In such case, if the petition fails to state a cause of action under the statute, a demurrer should be sustained, and it is immaterial whether or not there are averments in the petition which would have enabled appellants to recover at common law. Cole v. Armour, 154 Mo. 333, 350; Roaring Fork Potato Growers v. Clemons Produce Co., 193 Mo.App. 657. (3) Any number of persons, commissionmen, agents, undertakers, liverymen or persons engaged in the business of supplying any sort of service may form an association for the better conduct of their business, and may agree among themselves that they will not transact business with others who are not members of said association or with those who trade with non-members, and such an agreement is not in violation of the anti-trust laws of this State, nor of any rule of the common law. Co-Operative Live Stock Commission Co. v. Browning, 260 Mo. 324; Anderson v. United States, 171 U.S. 604, 43 L.Ed. 300; Harelson v. Tyler, 219 S.W. 908; National Fireproofing Co. v. Mason Builders Assn., 169 F. 259. (4) The petition fails to state a cause of action under the Statutes. R. S. 1919, secs. 9655, 9656, 9657, 9658; Co-Operative Live Stock Commission Co. v. Browning, 260 Mo. 324; Harelson v. Tyler, 219 S.W. 908; State ex rel. v. Associated Press, 159 Mo. 410, 456; Anderson v. United States, 171 U.S. 604. (5) The petition fails to state a cause of action at common law. National Fireproofing Co. v. Mason Builders Assn., 169 F. 259; 5 R. C. L. 1095-1098.

RAGLAND, C. Small, C., concurs; Brown, C., absent.

OPINION

In Banc.

RAGLAND C.

Plaintiff filed in the Circuit Court for the city of St. Louis the following petition:

"Come now the plaintiffs and, by leave of court first had and obtained, file this their amended petition.

"Plaintiffs state that they are husband and wife; that the defendants Mound City Liverymen & Undertakers' Association, Clement & Schur Livery & Undertaking Company, Cullen & Kelly Livery, Undertaking & Embalming Company, C. Hoffmesiter Undertaking & Livery Company, McFarland & Finan Undertaking & Livery Company, Wm. J. Roberts Livery & Undertaking Company, St. Louis Livery Company, Henry Leinder Undertaking Company, Wacker-Helderle Undertaking & Livery Company, and Marshall Brothers' Livery Company, are corporations, duly organized and existing under the laws of the State of Missouri; that all of the defendants named are members of the Mound City Liverymen & Undertakers' Association.

"For cause of action plaintiffs state that they are and have been for a long time engaged in the business of undertaking and embalming in the city of St. Louis; that plaintiff, Thomas Stephens, is a licensed embalmer; that they have complied with the state and local laws; that they have established for themselves a substantial and profitable business, which they carried on successfully for many years, until, on or about the 1st day of October, 1916.

"Plaintiffs state that these defendants, the Mound City Liverymen & Undertakers' Association and the members thereof have entered into an agreement and combination in writing, combining and conspiring together against these plaintiffs and all other undertakers in the city of St. Louis who are not members of said association, whereby it is agreed and understood by and between the said defendants that these defendants would not and should not trade, exchange, give or hire to any undertaker, not a member of this association, any carriages, hearses or other equipment, and in order to more effectually enforce said agreement and carry out and further said conspiracy, said Mound City Liverymen & Undertakers' Association of St. Louis, and the other defendants, as members thereof, agreed and threatened to suspend and fine any member of said association trading, exchanging, going or hiring or dealing with any undertaker not a member of said association, any carriages, hearses, horses or other equipment, and thereby tried to force and compel these plaintiffs to join said association and become a party to said conspiracy, which these plaintiffs refused to join and become members of said Undertakers' Association and become party to said unlawful combination, conspiracy, agreement and understanding, and refused to thereby aid and assist these defendants in their unlawful undertaking to create and maintain a monopoly for the purpose of controlling the livery and undertaking business in the city of St. Louis, Missouri, and to control the price to be charged for services so rendered, the association and the individual defendants have for a long time in the past refused to trade, exchange, give or hire to these plaintiffs or any other person in the city of St. Louis, not a member of said association, any carriages, hearses, or other equipment used in connection with the livery and undertaking business.

"Plaintiffs state that said conspiracy and combination entered into and carried on, and now carried on, was and is for the purpose of limiting competition and restricting trade, and raising and controlling the prices for the hiring of carriages and hearses.

"Plaintiffs state that by reason of the aforesaid secret, wrongful and unlawful agreement, understanding and conspiracy among and between these defendants, plaintiffs have, for a long time before the filing of this suit, been denied by these defendants the right and privilege of obtaining carriages and hearses from members of said association, said carriages and hearses being necessary with which to carry on their said business of undertaking and conducting funerals, and they have been obliged to forego and abandon funerals from which they could have earned large profits but for the wrongful interference and restraint put upon them by these defendants, and were finally compelled to abandon and quit their said business by reason of the wrongful interference and restraint put upon them by these defendants.

"Plaintiffs state that on divers occasions they have gone to the various members of the said association and offered and desired to hire from...