Church Shoe Co. v. Turner , 218 Mo. App. 516 ( 1926 )

^* Corpus Juris-Cyc. References; Appeal and Error, 3CJ, pp. 905, n. 24; 907, n. 43; 4CJ, pp. 663, n. 92; 900, n. 98; 1335, n. 49. Injunctions, 32CJ, pp. 77, n. 1; 179, n. 54; 181, n. 62; 182, n. 76; 229, n. 14; 347, n. 20. Labor Unions, 24 Cyc., p. 830, n. 52. Pleading, 31 Cyc., p. 468, n. 54. This is a suit in equity instituted by plaintiff on February 14, 1922, against the United Shoe Workers of America, a voluntary association, together with various locals of said union and certain members of said locals and of said union, as defendants. From the judgment of the court dismissing its bill, plaintiff has appealed.

The petition in substance alleged that on the 6th day of February, 1922, plaintiff entered into an agreement with the Boot and Shoe Workers Union to the effect that in the future plaintiff would employ in its shoe factory members of that union exclusively; that following said agreement it employed certain members of that union and desired to employ other members; that defendant, United Shoe Workers of America, was a voluntary unincorporated association having local branches in different parts of the United States, among which were the other voluntary associations named as defendants in this action; that Percy Turner was the general organizer of the United Shoe Workers of America, and that defendant Dan Curley was a member of the general executive board of said association; that the other individual defendants were members of the association and of one or the other of its local branches; that some of these individual defendants had been employed by plaintiff, but had ceased to be so employed February 1, 1922, when plaintiff shut down its factory; that there were a number of persons desirous of entering into plaintiff's employ; that the defendants combined and confederated together to terrorize and prevent the employees of plaintiff and persons desirous to enter into plaintiff's employ, all being members of the Boot and Shoe Workers Union, from prosecuting any work in plaintiff's factory; that defendants hung about, stationed themselves and took up positions in close proximity to plaintiff's factory for the purpose of picketing the premises and putting the employees and prospective employees in fear of bodily harm, and also applied to them vile and opprobrious epithets; that the acts of the defendants were not by reason of any grievance done to them, nor for the purpose of bettering working conditions, but were for the purpose of compelling plaintiff to break and abrogate its said contract with the Boot and Shoe Workers Union and to coerce plaintiff into employing only members of the United Shoe Workers of America; that the conduct aforesaid constituted a private nuisance in such close proximity to plaintiff's factory as to greatly destroy or injure its value.

Plaintiff prayed that the defendants be enjoined, both by temporary order and by permanent injunction, from interfering with the employees then in the employ of plaintiff, or with persons who desired to enter the employ of plaintiff, by use of threats, intimidation and personal violence, and that defendants be restrained from undertaking and inducing the employees of the plaintiff to quit, and from attempting to coerce plaintiff thereby to cease engaging members of the Boot and Shoe Workers Union.

Upon the filing of this petition an order was issued by the circuit court commanding defendants to show cause why a temporary injunction should not be issued and upon February 17, 1922, upon motion of plaintiff, a temporary restraining order was issued by the court after plaintiff had given bond in the sum of $3,000.

On February 23, 1922, the several voluntary associations, who were named as defendants, filed a plea in abatement setting up that service of process was had upon them illegally, which plea on April 24, 1922, was sustained.

On March 2, 1923, the remaining defendants jointly filed an answer consisting of a general denial, which answer on April 24, 1923, by leave of court, was amended by interlineation so as to contain the names of the several individual defendants.

The evidence was to the effect that plaintiff corporation was chartered in 1917, and from that date had been engaged in the manufacture of shoes at its factory at 2801 Benton street in the city of St. Louis; that prior to February 1, 1922, it had employed approximately 200 operatives, some of whom were members of unions and others non-union.

It was disclosed that there were two national labor organizations among shoe workers, one known as the Boot and Shoe Workers International Union, which was affiliated with the American Federation of Labor, and the other the United Shoe Workers of America, which had several branches throughout the country, some of which were located in the city of St. Louis and were named as defendants in this action.

At the time plaintiff began the operation of its factory, about seventy-five per cent of the employees were members of the Boot and Shoe Workers Union, but by January, 1922, only a small per cent of the total number of employees belonged to that organization, the majority of those who belonged to any union being members of the United Shoe Workers. However, even in 1922, the employees in the cutting room were members of the Boot and Shoe Workers Union.

On the 25th of January, 1922, because of the fact that the employees in the cutting room had progressed ahead of the other departments with their work, it was decided to lay them off for a few days until the other departments could catch up with them. Shortly thereafter a committee of members of the United Shoe Workers called on Mr. R.A. Nicholson, plaintiff's superintendent, and asked for a conference with Mr. F.C. Church, plaintiff's president. The purpose of this committee was to request that when the cutting room should be reopened, members of the United Shoe Workers would be employed therein. The only answer given them by Mr. Church was that he intended to close down the factory, the evidence disclosing that he had decided to enter into an agreement with the Boot and Shoe Workers Union that in the future he would hire only members of that organization. All of the employees were notified by their respective foremen that they should call and receive their wages in full, and on February 1 a sign was posted on the door "closed down indefinitely."

On February 6th the contract with the Boot and Shoe Workers Union was signed and the factory reopened on February 9th, at which time notices were inserted in the public press that plaintiff would employ members of the Boot and Shoe Workers Union and would give preference to its former employees in hiring operatives. Thereafter in securing employees plaintiff limited itself strictly to those who were members of the Boot and Shoe Workers Union or who were willing to become members.

As soon as the factory was reopened, preparations were made by the locked-out employees for picketing the plant. These arrangements were perfected at daily meetings held by the former employees or "shop-crews" at which time the pickets were selected. The daily meetings were not restricted to members of the United Shoe Workers, but former employees of plaintiff, though not belonging to that organization, were permitted to be in attendance and in some instances were selected for picket duty. Plaintiff's own evidence shows that the object in placing pickets was to inform prospective employees that the former employees had been locked out and to peaceably persuade them not to enter plaintiff's employ. The number of pickets stationed around the factory at any one time ranged from four to ten. Picketing continued from the time the factory reopened until the summer of 1922. During that time from ten to twelve police officers were stationed in the neighborhood of plaintiff's factory to preserve order. Plaintiff's evidence tended to show certain acts of violence which will be discussed in detail later in the opinion. On the other hand, violence was denied by all of defendants' witnesses, among whom were the sergeant in charge of the detail of police and two of his men, incidentally the only police officers called to the stand.

Much difficulty was experienced by plaintiff in securing enough employees to enable it to operate its plant at full capacity. At the time this suit was filed, plaintiff had about eighty-five employees, many of whom were inexperienced. The number was greatly increased, but it was not until the latter part of April, 1922, that there were sufficient operatives to enable plaintiff to proceed with its business on the basis of full time production. During the interim plaintiff was unable to get out many of the orders which it had for shoes, and some of the orders were canceled. It was the contention of the defendants that inasmuch as the orders which plaintiff was unable to fill had been taken in November and December, 1921, and January, 1922, and that at the time the factory was closed there were orders enough on hand to run the factory for ninety days, the loss incurred by plaintiff was due to its voluntary act in disrupting its organization.

The first alleged error assigned by plaintiff is the action of the court in permitting defendants to amend their answer by interlineation on April 24, 1923, so as to show that it had been filed only by the individual defendants. It will be recalled that on February 23, 1922, the several voluntary associations originally named as defendants filed a plea in abatement, which plea on April 24, 1922, was sustained. Thereafter, on March 2, 1923, an answer consisting of a general denial was filed by defendants generally, the names of the individual defendants filing same not being specified therein. It is plaintiff's contention that the filing of the answer on March 2, 1923, operated as a voluntary entry of appearance of those defendants whose plea in abatement had been sustained approximately one year before, and that, having entered their appearance, it was error for the court to permit the answer to be amended so as to indicate that they were not in the case. However, we do not think that this argument is well taken. When the plea in abatement was sustained, the voluntary associations were thereafter out of the case and it was no longer incumbent upon them to file an answer. However, there were forty-seven individual defendants left, so that the use of the word "defendants" in the answer was entirely proper, and because of its use there is no justification for saying that it included not only the defendants still in the case but also those whose plea in abatement had been sustained. But be this as it may, the assignment is not before this court for review for the reason that no exception was saved by plaintiff below, either to the action of the court in sustaining the plea in abatement, or in permitting the amendment of the answer by interlineation. Consequently, under section 1512, Revised Statutes 1919, this court is precluded from passing upon this point, it having not been made a matter of exception by plaintiff in the lower court. [Hafner Mfg. Co. v. City of St. Louis, 262 Mo. 621, 172 S.W. 28; Hughes v. Mississippi R. B.T. Ry. (Mo. Sup.), 274 S.W. 703; Gate City National Bank v. Miners' Farmers' Bank, 259 Mo. 551, 168 S.W. 725; Bush Const. Co. v. Withnell, 190 Mo. App. 33, 175 S.W. 260; Pickel v. Pickel, 176 Mo. App. 673, 159 S.W. 774; Dempsey v. Perle (Mo. App.), 218 S.W. 425.]

Another error assigned by plaintiff is the alleged holding of the court that, because the picketing by the defendants has ceased after the suit was filed and prior to the final hearing, plaintiff was not entitled to a permanent injunction. A number of cases are cited to the effect that, where the right to an injunction exists at the time the suit is filed, the fact that picketing subsequently ceases prior to the final hearing in the case is no defense against a prayer for a permanent injunction. We have no fault to find with plaintiff's statement of that rule of law, but its assignment of error in this respect cannot be considered for the reason that the abstract of the record does not show that the court made any such finding as alleged by plaintiff. The judgment of the court, as it appears in the abstract, merely shows that the court rendered its judgment and finding in favor of the defendants and dismissed plaintiff's bill, no reason being assigned therefor.

Plaintiff's three remaining assignments of error, that the court erred in dissolving the temporary restraining order upon final hearing, in dismissing plaintiff's bill and in refusing to grant a permanent injunction, may all be considered together, in that in effect they constitute but a single assignment that the finding of the court should have been in favor of plaintiff instead of for the defendants.

Addressing ourselves to a determination of that question, therefore, we find that this case was tried in the circuit court and briefed and argued here upon the theory that plaintiff was entitled to injunctive relief for two reasons: First, that defendants were unlawfully seeking to compel plaintiff to break and abrogate its contract with the Boot and Shoe Workers Union; and second, that defendant's conduct had been such as to establish a private nuisance in such close proximity to plaintiff's factory as to greatly destroy or injure its value.

In support of its first contention that defendants' conduct was unlawful and was the subject of injunctive relief for the reason that they were seeking to compel plaintiff to break its contract with the Boot and Shoe Workers Union, plaintiff cites two cases, Hughes v. Motion Picture Operators, 282 Mo. 304, 221 S.W. 95, and Hitchman Coal Coke Company v. Mitchell, 245 U.S. 229.

In the Hughes case, Hughes was the proprietor of a moving picture show and defendants were members of the motion picture operators. Hughes operated his own projecting machine, and the defendants were seeking to compel him to employ a regular operator instead of doing the work himself. Their request being denied by Hughes, pickets were placed outside of the theater and patrons were warned not to patronize the place on the ground that it was unfair to organized labor. Our Supreme Court very properly directed the trial court to issue a permanent injunction against defendants restraining them from picketing in front of plaintiff's theater for the reasons that the right of Hughes to operate his own machine and thereby keep down the expenses of the business was the simple and primitive right of a man to earn a livelihood with his own hands and that no grievance of organized labor was involved in the case.

In the Hitchman case, there was no strike or lookout of former employees. Mitchell was an officer of the United Mine Workers of America and had come into the district where the Hitchman mine was located for the purpose of organizing the employees into unions. In the agreement between the Hitchman Coal Company and its employees there was a proviso that, in the event the employees joined a union, their contract of employment would thereby be automatically canceled. The United States Supreme Court very properly held that Mitchell, inasmuch as he was acting without any agency for the Hitchman employees, should be enjoined from attempting to carry out his purpose.

But these two cases are clearly distinguishable from the case at bar, in that in neither of them had the relation of employer and employee ever existed between the parties. We readily agree that it is unlawful for a disinterested third party (as Mitchell was) to seek to compel the breaking of a contract entered into between an employer and its employees, but no case has been called to our attention, nor has our search disclosed one, in which employees, former (as defendants were) or expectant, are placed in the same category in this respect as disinterested parties.

In the Hitchman case, Mr. Justice PITNEY, who wrote the majority opinion for the court, very clearly made this distinction, when he said on pages 252 to 253:

"The case involves no question of the rights of employees. Defendants have no agency for plaintiff's employees, nor do they assert any disagreement or grievance in their behalf. In fact, there is none; but, if there were, defendants could not, without agency, set up any rights that employees might have."

The only language in the Hughes case that bears upon the question as to whether or not a combination to procure breaches of contract by a company's employees is a violation of that company's rights is either quoted verbatim from or used in reference to the Hitchman case. Consequently neither of those cases is any authority for plaintiff's contention that it was unlawful for defendants to seek to compel plaintiff to abrogate its contract with the Boot and Shoe Workers Union, assuming such to have been their purpose.

The distinction between the Hughes and Hitchman cases and the one at bar with reference to the difference between the status of former employees (as defendants were) and that of rank outsiders, is clearly illustrated (and in fact expressly made) in the very late and important case of American Steel Foundries v. Tri-City Central Trust Council, 257 U.S. 184, wherein Mr. Chief Justice TAFT, in discussing the Clayton Act, on page 203 said:

"It is clear that Congress wished to forbid the use by the Federal courts of their equity arm to prevent peaceable persuasion by employees, discharged or expectant, in promotion of their side of the dispute, and to secure them against judicial restraint in obtaining or communicating information in any place where they might lawfully be. This introduces no new principle in to the equity jurisprudence of those courts. It is merely declaratory of what was the best practice always."

On page 206, particular emphasis is given to the rights of ex-employees:

"A restraining order against picketing will advise earnest advocates of labor's cause that the law does not look with favor on an enforced discussion of the merits of the issue between individuals who wish to work, and groups of those who do not, under conditions which subject the individuals who wish to work to a severe test of their nerve and physical strength and courage. But while this is so, we must have every regard to the congressional intention manifested in the act and to the principle of existing law which it declared, that ex-employees and others properly acting with them shall have an opportunity, so far as is consistent with peace and law, to observe who are still working for the employer, to communicate with them and to persuade them to join the ranks of his opponents in a lawful economic struggle."

We think it is clear, therefore, that defendants, in the light of the American Steel Foundries case, were within their rights in so far as they attempted peaceably to persuade plaintiff's employees, actual or expectant, either to leave or not to enter its employ, even though the ultimate effect of such conduct should be the breaking of the contract entered into between plaintiff and the Boot and Shoe Workers Union and that, in so far as this part of its case was concerned, plaintiff was clearly not entitled to the relief sought.

It will be observed, however, that we have qualified defendants' right of persuasion by saying that it must be carried on peaceably. That brings us to a consideration of plaintiff's second contention — in support of its prayer for an injunction — that defendants' conduct had established a private nuisance in such close proximity to plaintiff's factory as to greatly destroy or injure its value.

A great part of plaintiff's evidence seems to have been introduced upon the theory that picketing is unlawful per se. But such is not the law. Picketing, in the absence of violence, threats or intimidation and for the purpose of peaceable persuasion, argument or entreaty, is lawful. [American Steel Foundries v. Tri-City Council, and Hughes v. Motion Picture Operators, supra; Marx Haas Jeans Clothing Co. v. Watson,168 Mo. 133, 67 S.W. 391; Hamilton-Brown Shoe Co. v. Saxey,131 Mo. 212, 32 S.W. 1106; City of St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30; Stewart Land Co. v. Perkins, 290 Mo. 194, 234 S.W. 653; In re Heffron, 179 Mo. App. 639, 162 S.W. 652; Berry Foundry Co. v. International Moulders Union,177 Mo. App. 84, 164 S.W. 245; Root v. Anderson (Mo. App.), 207 S.W. 255.] When, however, intimidation, threats and violence are resorted to, the picketing, so conducted, may properly be held to establish a nuisance and is subject to be enjoined. Whether or not a nuisance had been established becomes, therefore, not so much a matter of law as a question of fact.

The following are the incidents cited by plaintiff which it contends are evidence of intimidation, threats and violence in such close proximity to its factory as to greatly destroy or injure its value:

Joseph Sims was assaulted one block from the factory by two parties not defendants in the case.

Harry Heenen, while at his home, was threatened by his uncle, not a defendant, that he would get his neck broken if he didn't stay away from plaintiff's factory.

Stanley Nowicki was called a "dirty Greek" by some unknown party.

William Riebel was threatened by Tom Irving, not a defendant, when one and one-half blocks from the factory.

Perry Jones was called a "scab" by certain unnamed pickets.

Christ Rallis testified that he was assaulted by defendant William Thompson two blocks away from the factory. Thompson, on the other hand, testified that Rallis was the aggressor.

Edna Ebeling and Mamie Pardick heard profane language used by defendant Thomas Kane when two blocks away from the factory.

H.J. Koching was threatened by two unnamed parties at his home; was assaulted by three strangers at 19th and Cass; heard profane language directed towards him at 15th and Cass.

These incidents show beyond peradventure of doubt that there was much bad feeling displayed between the rival parties to this labor dispute. But whether plaintiff established its right to injunctive relief against the respondents in this appeal is quite another question,

Our statement of the acts of violence relied on by plaintiff shows that there was but very little evidence to connect any defendant with such acts. To the contrary the testimony discloses that the parties guilty of the reprehensible conduct were either unnamed or else were not defendants to the action. Under such a state of facts, if plaintiff is entitled to a permanent injunction against the defendants in the case, it must be for one of two reasons: either that the defendants named represented or had ratified the acts of those not named, or that there was a conspiracy alleged between the parties defendant and those not defendant who were guilty of the acts of violence on account of which plaintiff seeks relief. [Scott v. Donald, 165 U.S. 107.]

In so far as establishing agency between the pickets generally and defendants is concerned, plaintiff's case was sadly weakened by the order of the court sustaining the plea in abatement of the voluntary associations originally named as defendants. That the members of a union are liable for the acts of its officers and agents when acting for the union and within the scope of their authority may not be denied. [Clarkson v. Laiblan,202 Mo. App. 682, 216 S.W. 1029.] Yet, when the court's order was entered, so far as our record discloses, plaintiff stood mute and did not even save its exception to the order.

Nor is this a case presented to us upon a charge of conspiracy, for, even if the petition itself could be so construed, the case was neither tried before the chancellor nor briefed and argued here upon such theory. To the contrary plaintiff makes the points on appeal that an injunction will lie (1) to prevent third persons from causing or assisting in a breach of contract between two other persons, and (2) to prevent picketing where it is accompanied by violence, threats, intimidation, misrepresentation of the attitude of an employer to his employees, or coercion.

Inasmuch as an injunction operates in personam (Hitchman Coal Coke Co. v. Mitchell, supra), we think that plaintiff, having alleged that certain specific individuals were guilty of such acts of violence, intimidation and coercion as to establish a private nuisance in and around its factory, in order to obtain relief must prove its charge against such individuals and no others. Accordingly, limiting ourselves to a consideration of acts alleged to have been committed by the actual defendants, we have evidence of an assault upon Christ Rallis by defendant William Thompson, the same occurring two blocks from the factory, certainly in no very close proximity to plaintiff's property. Were even this fact undisputed, it might be sufficient to make plaintiff's case because Chief Justice TAFT has said that one or more assaults may characterize a whole campaign. But Thompson swore that Rallis was the aggressor and where, as here, the facts are conflicting and close, it is within our province to defer to the finding of the chancellor because of his better position to determine the credibility of the witnesses. [Keener v. Williams, ___ Mo. ___, 271 S.W. 489; Pfotenhauer v. Ridgway, ___ Mo. ___,271 S.W. 50; Scott v. Barton, 285 Mo. 427, 226 S.W. 958; Walsh v. Walsh, 285 Mo. 181, 226 S.W. 236; Gibson v. Shull, 251 Mo. 480, 158 S.W. 322; Conrad v. Boogher, 201 Mo. App. 644, 214 S.W. 211; Fernandes Grain Co. v. Hunter, ___ Mo. App. ___, 274 S.W. 901.]

One complaint is left — the use by defendant Thomas Kane of profane language in the presence of two young ladies. The scene of this occurrence was two blocks from the factory. This act was reprehensible and must not be condoned, but of itself, it was not sufficient to create a nuisance in such close proximity to plaintiff's factory as to greatly destroy or injure its value. At most it was but a breach of the peace and certainly not the proper subject of relief by injunction which presupposes acts designed to create a nuisance and calculated to work irreparable injury.

Because of the important issues involved in this case, it has been a matter of much concern to us. But, after a most thorough review of the record, we cannot escape the conclusion that plaintiff failed to show that it was entitled to the relief sought against the defendants remaining parties to the action. Accordingly the Commissioner recommends that the judgment of the circuit court be affirmed and the cause remanded for disposition of the motion filed May 29, 1922, by defendant United Shoe Workers of America, Local No. 10, for the assessment of damages on the injunction bond.