Wiehtuechter v. Miller

• Decision Date: 23 December 1918
• Citation: 208 S.W. 39,276 Mo. 322
• Parties: FRED W. WIEHTUECHTER et al. at the Relation and to the Use of the AMERICAN INTERNATIONAL MUSICAL & THEATRICAL UNION, LOCAL NO. 2, A Voluntary Trades-Union, Plaintiffs in Error, v. OWEN MILLER et al
• Court: Missouri Supreme Court

208 S.W. 39

276 Mo. 322

FRED W. WIEHTUECHTER et al. at the Relation and to the Use of the AMERICAN INTERNATIONAL MUSICAL & THEATRICAL UNION, LOCAL NO. 2, A Voluntary Trades-Union, Plaintiffs in Error, v. OWEN MILLER et al

Supreme Court of Missouri, Second Division

December 23, 1918

Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.

Affirmed.

F. W Imsiepen and George F. Osiek for plaintiffs in error.

(1) Local unions may be impleaded in their common name. Rhodes Bros. v. Musicians' Union No. 198, 37 R I. [1915] 281. Or its members may be impleaded alone, under the law of principal and agent. Lawler v. Loewe, 235 U.S. 522. (2) It is shown that local union in suit is an aggregation of personal talents, which definition applies to an ordinary partnership as distinguished from an aggregation of capital, that the libelous publication complained of is leveled at the common name of the unincorporated branch as a unit of rights, in pursuance of a wrongful design to interfere with the carrying on of the scheme of the aggregation of talent in question, and that as a result the partnership or unincorporated branch as a unit of right, and the personal right of each member in the branch has sustained and will continue to suffer serious injury and financial loss. The libel designated the aggregation of talents in suit as "an unfair bunch" of musicians, meaning an aggregation of tricky, dishonest men in character and in their acts and dealings doing business with men under the common name of the branch in suit. And is addressed to persons likely to deal with said unincorporated branch or aggregation of talents for the hire of music. (3) The law assumed that the aggregation of talents in suit associated together (as partners inter se se, Hammerstein v. Parsons, 38 Mo.App. 332) actively carrying on a lawful business scheme for the benefit of its members, and that each member is the active agent and trustee for the association and for every member, for the purposes of actively carrying on the business scheme, as distinguished from members of mere aggregations of capital, e. g., as in the nature of joint stock companies. Adams Express Co. v. Railroad, 126 Mo.App. 475. (4) The law naturally assumes from the attributes of the local branch that it is a unit of vested rights in the same sense of an ordinary partnership, and naturally assumes that the branch was injured in its vested rights by the defamatory libel and that the resulting injuries created the right to monetary damages and other equitable relief in due course; and that the rights flowing from said wrong are vested in said local branch separate and apart from any rights which may have accrued to its members individually as partners inter se se. Newell, Libel and Slander (3 Ed.), secs. 470, 472 et seq. (5) Restrictions upon the powers of a partner are not presumed and are matters between the members of the partnership; and restrictions can only be shown to have been imposed by articles of association or by separate contracts. 30 Cyc. 481, note 59; Bates v. Forcht, 89 Mo. 121; Murphy v. Cambden, 18 Mo. 122. And under the law of agency as applied to local branches any lawful or unlawful acts of a partner done in the line of his service, but without the express or implied consent of the other members of the firm may be ratified by the other members of the firm and fix liability on the branch and its members jointly and severally. Loewe v. Lawler, 208 U.S. 274, 235 U.S. 522; Adams Exp. Co. v. Railroad, 126 Mo.App. 475. The rights of the local branch in suit acquired by the libel in question are primarily the rights of the local branch as a unit of rights. 30 Cyc. 530, note 16; Beakes v. Cunha, 126 N.Y. 293. Each member has implied authority to bind the local branch and every member thereof by contracts executed in the name of the branch and which are within the scope of the business of the branch (including such contracts as relate to the prompt suppression by due process of law of extraordinary wrongs of the kind in suit). 30 Cyc. 481; Murphy v. Francisco, 65 Mo. 598. Each member is jointly and severally liable for a tort committed by the local branch, equally with the local branch. Rhodes Bros. v. Musicians Local Union No. 198, 37 R. I. 281; Lawler v. Loewe, 235 U.S. 522. (6) Plaintiffs in their representative capacity as agents and trustees set up in their instant petition a certain right which arises to the unincorporated St. Louis trades-union as a party plaintiff, namely, the right to institute civil actions in the proper courts of the State of Missouri for all proper relief for injuries naturally flowing to said local branch as a unit of rights from defamatory libels of the kind complained of. Tennessee v. Davis, 100 U.S. 257; In re Lennon, 166 U.S. 553; Constitution of Missouri, Art. 2, sec. 10.

Frank K. Ryan for defendants in error.

(1) The demurrers were rightfully sustained by the trial court, because the petition does not meet the requirement of Sec. 1733, R. S. 1909, by joining as plaintiffs therein all the parties that are united in interest in the matter set forth as a cause of action in said petition. Secs. 1733, 1729, R. S. 1909; Miller v. Crigler, 83 Mo.App. 406; Kamerick v. Castleman, 23 Mo.App. 493; McLeland v. St. Louis Market Co., 105 Mo.App. 479; Lilly v. Tobbein, 103 Mo. 488; O'Rourke v. Kelly, 156 Mo.App. 95; State ex rel. v. Johnson, 25 Mo.App. 455; 24 Cyc. 829; McLoughlin v. Wall, 81 Kan. 206; Buckley v. Big Muddy Iron Co., 77 Mo. 107; Adams Express Co. v. Metrop. St. Ry. Co., 126 Mo.App. 475; Metrop. St. Ry. Co. v. Adams Express Co., 145 Mo.App. 375; Williams v. United States Express Co., 195 Mo.App. 365; Wilson v. Polk County, 112 Mo. 139. (2) The petition does not state facts sufficient to constitute a cause of action. Girard v. Breck, 3 E. D. Smith (N. Y.) 344; Ryckman v. Delevan, 25 Wend. 189; Dudley v. Briggs, 141 Mass. 582; Bradley v. Fuller, 118 Mass. 239; Democratic Publishing Co. v. Jones, 83 Tex. 652; Barbour on Parties (2 Ed.), p. 294; Newell on Libel and Slander (2 Ed.), sec. 21; State ex rel. v. Beardsley, 57 Mo.App. 574; Labor Review Co. v. Galliher, 153 Ala. 364; Watters v. Retail Clerks' Union, 120 Ga. 426.

OPINION

WHITE, C. --

The defendants in this case filed a demurrer to the plaintiffs' petition, which attempts to state a cause of action for libel. The demurrer was sustained; plaintiffs declined to plead further, judgment was entered on behalf of defendants, and plaintiffs appealed.

The petition alleges:

"That plaintiffs are members of the American International Musicians' Union, Local No. 2; that said local union is a voluntary benevolent association or trades-union; that the members of said union are too numerous to be joined as parties plaintiff herein; that plaintiffs bring this suit in a representative capacity, for the use and benefit of said voluntary trades union, under power and authority duly vested in said plaintiffs by their said voluntary trades union; that said voluntary trades union also operates under the name of St. Louis Local No. 2, American International Musicians' Union, and has its office and place of business in the city of St. Louis in this State, and that said union is a member of a certain national trades union known as the American International Musical and Theatrical Union, and which latter union is a corporation duly organized and existing under and by virtue of the laws of the United States.

"That the members of plaintiffs' St. Louis Local Union No. 2, are all of the same class and that each of them pursues his chosen calling as a musician for hire in the open market and subject to the rules and laws of said union, and with the aid of a certain trademark or working card duly issued to him by his said St. Louis Local Union No. 2, and which working card is hereinafter specifically described."

Then follow allegations of the defendants' membership in another association of musicians, and the petition proceeds:

"That plaintiffs' St. Louis Local Union No. 2, by virtue of its said membership in said parent body hereinbefore referred to, is and was at the time of defendants' wrongful and malicious acts, hereinafter referred to, the owner of a certain interest in and to a certain valuable property right, namely, the right to own and to hold and to use a certain device, trade-mark or working card, under the name and style of "Universal Working Card, American International Musical and Theatrical Union, Incorporated, St. Louis Local Union No. 2, American Musicians' Union.'

"And by the terms of its said membership plaintiffs' St. Louis Local Union No. 2, was vested with, and at all times exercised, the right to issue one of its said working cards to each one of its individual members in good standing; that its said property right runs with said right of membership and that said property right is forfeited by the loss of membership.

"That said membership of plaintiffs' St. Louis Local Union No. 2, together with said property right which so runs with and is conditioned upon said membership in good standing in said incorporated parent body, is of the reasonable value of forty thousand dollars.

"That said membership and said property rights which so run with said membership are subject to forfeiture and loss in a proceeding duly had before its said parent body upon trial and conviction of tricky, dishonest or unfair methods or practices in its business relations with any other association of musicians or workingmen, or in its business relations with employers of musicians or for wrongfully or negligently permitting its members to engage in tricky, dishonest or unfair transactions in their business dealings with employers of musicians."

The petition then alleges that it was the purpose of...