United Mine Workers of America v. Coronado Coal Co.

• Decision Date: 28 April 1919
• Docket Number: 5154.
• Parties: UNITED MINE WORKERS OF AMERICA et al. v. CORONADO COAL CO. et al. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

258 F. 829

UNITED MINE WORKERS OF AMERICA et al. v. CORONADO COAL CO. et al. ^[1]

No. 5154.

United States Court of Appeals, Eighth Circuit.

April 28, 1919

Hook Circuit Judge, dissenting. [Copyrighted Material Omitted]

Alton B. Parker, of New York City (Covington & Grant, of Ft. Smith Ark., and Henry Warrum, of Indianapolis, Ind., on the brief), for plaintiffs in error.

Henry S. Drinker, Jr., of Philadelphia, Pa., and James B. McDonough, of Ft. Smith, Ark. (Roger B. Hull, of New York City, on the brief), for defendants in error.

Before SANBORN and HOOK, Circuit Judges, and TRIEBER, District Judge.

TRIEBER District Judge (after stating the facts as above).

The record is very voluminous, covering over 3,400 printed pages. There are 184 assignments of error, but counsel in their briefs and oral arguments only insisted upon those hereinafter mentioned, and we will therefore confine this opinion to those assignments and in the order presented by counsel.

1. The defendants insist that it was error to hold the unions which were made defendants as entities, against which an action could be instituted, process had, and judgment recovered; they being unincorporated labor unions.

This question was determined by this court on the former hearing, sub nomine Dowd v. United Mine Workers of America, 235 F. 1, 148 C.C.A. 495, and it was there held that under the Sherman Anti-Trust Act these unincorporated unions may be sued by one injured in his business or property by reason of anything done which is forbidden by the Sherman Act. That decision is the law of the case, and cannot now be again reviewed. In re Sanford Fork & Tool Co., 160 U.S. 247, 16 Sup.Ct. 291, 40 L.Ed. 414; National Bank of Commerce v. United States, 224 F. 679, 140 C.C.A. 219; Continental, etc., Bank v. North Platte Valley Irrigation District, 237 F. 188, 150 C.C.A. 334; Griggs v. Nadeau, 250 F. 781, 163 C.C.A. 113.

2. It is next claimed that there was a misjoinder of plaintiffs and of their causes of action, and that the demurrer to the complaint on that ground should have been sustained.

In order to understand the issues involved in this motion, it is proper to state that the complaint alleges that the nine corporations, for which the plaintiffs as receivers sued, were under the control of the same persons, who owned all the shares of stock of all nine corporations and all were operated as one, eight of them being subsidiaries of the Bache-Denman Coal Company; that by reason of these facts, the destruction by the defendants of the property of said corporations, they sustained the losses jointly; that by reason of the unlawful acts of the defendants the plaintiffs were prevented from operating any of the mines, they being in close proximity in the Prairie Creek valley, in Sebastian county, Ark. It is further alleged that the receivers were appointed by the District Court by a single decree, in one action.

That under the Code of Practice of the state of Arkansas, in which state the wrongs were committed and this cause tried, it was proper to join all the plaintiffs' causes of action, all of them arising out of the same torts, committed by the same persons, at the same time, and in pursuance of the same alleged conspiracy, has been determined by the Supreme Court of the state ever since the enactment of Act May 11, 1905 (Laws Ark. 1905, p. 798). St. Louis, I.M. & S. Ry. Co. v. Broomfield, 83 Ark. 288, 104 S.W. 133; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S.W. 1048; Hargis v. Lawrence, 136 Ark. 323, 204 S.W. 755. Under the Conformity Act of Congress (section 914, Rev. Stat. (Comp. St. Sec. 1537)) the state practice controls proceedings at law in the national courts held in the state, in the absence of an act of Congress. Glenn v. Sumner, 132 U.S. 152, 156, 10 Sup.Ct. 41, 33 L.Ed. 301; Sawin v. Kenny, 93 U.S. 289, 23 L.Ed. 926; O'Connell v. Reed, 56 F. 531, 536, 5 C.C.A. 586; Rush v. Newman, 58 F. 158, 161, 7 C.C.A. 136.

In Kansas City Southern Ry. Co. v. Leslie, 238 U.S. 599, 603, 35 Sup.Ct. 844, 59 L.Ed. 1478, an action arising under the national Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. Secs. 8657-8665)), the plaintiff joined two distinct and separate actions caused by the same act of negligence, one to recover damages for the benefit of the estate of the deceased, and the other for the pecuniary loss of the next of kin. There was a verdict in favor of the plaintiff for a lump sum on both causes of action, without any apportionment to the different beneficiaries. This was made one of the assignments of error. Notwithstanding that in Gulf, Colorado, etc., Ry. v. McGinnis, 228 U.S. 173, 33 Sup.Ct. 426, 57 L.Ed. 785, it had been held that 'Though the judgment may be for a gross amount, the interest of each beneficiary must be measured by his or her individual pecuniary loss. That apportionment is for the jury to return'-- the judgment entered on the verdict of the jury without apportionment was upheld, the court holding:

'As the challenged verdict seems in harmony with local practice and has been approved by the court below (referring to the Supreme Court of Arkansas), the judgment thereon is not open to attack here upon the ground specified.'

But it is contended that there is an act of Congress regulating the consolidation of causes (section 921, Rev. Stat. (Comp. St. Sec. 1547)), and that in Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 Sup.Ct. 909, 36 L.Ed. 706, this has been construed adversely to the ruling of the court below. We do not so construe the opinion of the court. What the court decided was that--

'Where the English consolidation rule has not been adopted, the American courts, state and federal, have exercised the authority of ordering several actions by one plaintiff against different defendants to be tried together, whenever the defense is the same and unnecessary delay and expense will be thereby avoided.'

The court then proceeded:

'But although the defendants might lawfully be compelled, at the discretion of the court, to try the cases together, the causes of action remain distinct, and required separate verdicts and judgments; and no defendant could be deprived, without its consent, of any right material to its defense, whether by way of challenge of jurors, or of objection to evidence, to which it would have been entitled if the cases had been tried separately.'

In the instant case there was no consolidation of actions, but assuming, without deciding, that the same rule applies to actions originally brought by several plaintiffs, or against several defendants, which could properly be consolidated under that section, objection can only be made if the parties are deprived of a right material to their defense, 'whether by way of challenge of juror or of objection to evidence to which it would have been entitled if the causes had been tried separately. ' Of course, such rights can only be claimed at the trial of the cause, and not by demurrer to the complaint. There is no claim that the defendants were deprived of either of these rights at the trial. To entitle the defendants to insist in the appellate court that they were entitled to more than three peremptory challenges of jurors, that right must be claimed at the trial, and also that the parties complaining had exhausted their right of peremptory challenges. It was so held in Connecticut Mutual Life Insurance Co. v. Hillmon, 188 U.S. 208, 212, 23 Sup.Ct. 294, 47 L.Ed. 446, when the case, reported in 145 U.S. 285, 12 Sup.Ct. 909, 36 L.Ed. 706, was for the second time before the Supreme Court. The record here shows that the defendants only challenged one juror peremptorily. It fails to show that they had made any claim to more than three challenges. How, then, can it be claimed that the court erred, when it was never called on to rule on the question, when the jury was selected, and the defendants were not prejudiced by having exhausted the three challenges?

3. It is claimed that the court erred in requiring the defendants to produce certain books, writings, and documents.

If the petitions for the books and documents had failed to specify what books and documents were wanted, or did not make a sufficient showing of their materiality, so that the object was merely an attempt to obtain information, it would have been error to grant the petitions. United States v. Terminal Railway Association (C.C.) 154 F. 268, 272, and authorities cited. But each of the petitions set out and described the documents wanted, and the reasons for their materiality. All except the first petition were against the defendants as officers of the organization, to produce books and documents in their possession as such officials, which it was alleged were records of their organization. The first petition included them as officers and individuals, but this petition was denied. Section 262, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1162), which is a re-enactment of section 716, Rev. Stat. (Comp. St. Sec. 1239), authorizes such an order. It was so held in American Lithographic Co. v. Werckmeister, 221 U.S. 603, 609, 31 Sup.Ct. 676, 55 L.Ed. 873. As the orders to produce them were limited to the parties as officials of the United Mine Workers of America, and not as individuals, the claim that the orders were in violation of the Fourth and Fifth Amendments to the Constitution must also fail. Hale v. Henkel, 201 U.S. 43, 69, 26 Sup.Ct. 370, 50 L.Ed. 652; Wilson v. United States, 221 U.S. 361, 31 Sup.Ct. 538, 55 L.Ed. 771, Ann. Cas. 1912D, 558; Wheeler v. United States, 226 U.S. 478, 33 Sup.Ct. 158, 57 L.Ed. 309.

4. Did the court err in allowing the defendants in error to read in evidence extracts from the printed records of the joint...