Bricklayers', Masons' & Plasterers' International Union of America v. Seymour Ruff & Sons, Inc.

Digges, J., delivered the opinion of the Court. The principal question for decision in this case is whether an employer, who has entered into a subcontract to perform work on a certain building, may recover damages against the labor unions of which, with his knowledge, his employees are members, because those unions have ordered them to quit work on the building in question for the reason that the general contractor has refused to employ union labor on other ⁴⁸⁵ jobs in the same locality; there being no contract of employment between the subcontractor and his employees. This question arises in an action on the case brought in the Circuit Court for Frederick County by the appellee against the Bricklayers’, Masons’ & Plasterers’ International Union of America, a voluntary unincorporated association, hereinafter called the International, the Bricklayers’ & Masons’ Protective & Beneficial Union No. 7 of Maryland, located at Frederick, Md., a voluntary unincorporated association, hereinafter called Union No. 7, and John T. White. The declaration alleges that the defendant International is a voluntary unincorporated association consisting of more than seven members, has a recognized group name, and is located in the City of Washington, D. 0., but doing business in various states throughout the United States, through its duly authorized agents, and, for the purposes thereinafter mentioned, having appointed the defendant White as its duly authorized agent; that the International is composed of elective and appointive officers and the legally elected representatives of subordinate unions, created and acting under its constitution, and these subordinate unions are located in the various cities throughout various states of the United States, and that the government and superintendence of such subordinate unions is vested in the International, as the supreme head of all unions; that the International has the power to determine the customs and usages in regard to all matters relating to the craft, including the power to legalize and govern strikes and lockouts, and included in such power to order strikes and lockouts is the power to punish local unions and any member or members thereof by severe fines and other penalties, and by expulsion from the union, in the event of their failure to obey an order of the International or its officers to go on strike and refuse to work; that the defendant Union No. 7 is a voluntary unincorporated association consisting of more than seven persons, having a recognized group name, and having its principal office and place of business in the City of Frederick, Md., is a member and one of the subordinate unions of the International, and membership ⁴⁸⁶ of both, of said organizations being composed of “union men”; that the persons forming the plaintiff corporation are contracting stone masons and have been engaged in that business in the City of Baltimore, Md., for many years past, first, as a partnership, and since 1928 as a corporation, and during the entire time in which they have been so engaged they have conducted what is known as a union shop, employing union men only, to wit, men affiliated with the International and its subordinate unions in various cities and states, and doing work with such men in various cities and states of the United States, and, at the time of the wrongs and injuries therein-after complained of, there was no grievance, trouble, or controversy of any kind between the plaintiff and its employees, the said “union men,” nor between the plaintiff and the defendants; that on or about January 8th, 1929, the plaintiff entered into a written contract with Lloyd O. Culler of Frederick, Md., a general contractor having a contract for the erection and completion of a church in Frederick, to do all of the stone masonry, brick, and tile work, furnish labor and material, and set the limestone, for the erection and completion of the church, for the sum of $50,000, and, pursuant to its obligation thereunder, the plaintiff began the work required of it to be done under the contract, and employed union labor only in and about the work, and continued said work until the early part of March, 1929, when the defendants wantonly, unlawfully, and maliciously, and with intent to cause a breach of said contract between Culler and the plaintiff, declared a strike upon said job, and ordered all of said union men employed upon the work' by the plaintiff to go on a strike and quit work, and, pursuant to this order, the men did go on strike and quit work, and refused to resume work until ordered to do so by the defendants, and subsequently, upon orders of the defendants, but only after an interval of time, the men resumed work and continued for a few days, when the defendants again wantonly, unlawfully, and maliciously, and with intent to cause a breach of the contract between Culler and the plaintiff, ordered a strike on said job and ordered the men to quit work, and said men did ⁴⁸⁷ go oil strike and quit work and refused to resume work until ordered to do so by tbe defendants; that the defendants maliciously, wantonly, and unlawfully, notwithstanding the requests and demands of the plaintiff, refused to declare the strike off and order the men back to work, and by reason thereof the plaintiff was unable to continue the work it was required to do in and about the church under its contract with Culler, and on account thereof Culler canceled the contract and notified the plaintiff that he was employing others to finish the work at the risk and expense of the plaintiff; that the acts and conduct of the defendants were not caused or influenced by any violation on the part of the plaintiff of any obligation it owed the defendants 'or either of them, or to the union men employed by it, but said wanton, malicious, and uidawful acts of the defendants were caused solely and entirely by the desire of the defendants to compel Culler to employ union men on work Culler had contracted to do in Frederick and vicinity, other than the work upon said church, and because Culler refused to comply with the demand of the defendants that he employ union men on all of his other work, the defendants wantonly, maliciously and unlawfully did the acts complained of, thereby causing a breach of the contract between Culler and the plaintiff, and all of the acts were done by the defendants with full knowledge that said acts would result in said breach of contract and cause substantial loss and great injury and damage to the plaintiff, for which the plaintiff claimed the sum of $25,000 damages.

Before discussing the principal question as above set forth, we will dispose of the incidental and subsidiary questions arising out of the pleadings. The record discloses that upon filing the declaration a separate writ of summons was issued for each of the defendants; that, accompanying these writs of summons, duly certified copies of the summons and of the declaration and notice to plead were sent to the sheriffs of Frederick County and Baltimore City; that on the return day of the writ the sheriff of Frederick County made return of the writ thereon indorsed, “Summoned the Bricklayers and Masons Protec ⁴⁸⁸ tive and Beneficial Union No. 7 of Maryland, located at Frederick, Md., a voluntary unincorporated association, by service upon Leonard C. Kreh, its financial secretary, and copy of summons and copy of narr left with him. Wm. C. Roderick, Sheriff”; and on the same day the writ of summons to the sheriff of Baltimore City was returned indorsed, “Summoned the Bricklayers, Masons and Plasterers International Union of America, a voluntary unincorporated association, by service on John T. White, agent, and a copy of narr and notice to plead left with said agent, also summoned John T. White and copy of narr and notice to plead left with the defendant.

John E. Potee, Sheriff”; that the defendants failed to appear, and on July 2nd, 1929, the personal appearance of the defendants was entered and rule laid upon them to answer the declaration or judgment would be entered against them by default; that on July 20th counsel entered their appearance for the defendants Union No. 7 and John T. White, and the same day filed a demurrer on behalf of each of these-defendants; on the same day there was filed a paper by the International, signed by it by Harry O. Bates, first vice-president, verified by affidavit of Bates, which paper the docket entries state to be a plea to the jurisdiction. This paper is headed “Plea- to the Jurisdiction,” in which the International, by Harry C. Bates, its first vice-president, says: “That at the time this suit was brought it had not, nor has it now, an office in said State, that it did not then, nor does it now, regularly meet or transact business in said State; but that its principal office is located in the City of Washington, in the District of Columbia, and, that it regularly meets and transacts its business there, and at the time of the issuance of the summons in this case, it had its principal office and regularly met and transacted its business in the said City of Washington.” On the 24th of July the plaintiff filed a replication to the plea to the jurisdiction, traversing the allegations therein made. On August 2nd, the attorneys who had entered their appearance and filed demurrers for the defendants Union No. 7 and White appeared specially for the defendant International and demurred to the plaintiff’s rep ⁴⁸⁹ lication. On November 2nd, the demurrer to the replication was heard by the court, as well as the demurrers to the narr, filed by the other defendants; whereupon the court overruled the demurrers of Union No. 7 and White to the narr, and sustained the demurrer of the International to the replication.

Subsequently the defendants Union No. 7 and White filed general issue pleas, and the plaintiff filed an amended replication to the International’s plea to the jurisdiction. On January 13th, 1930, issue was joined on the amended replication, and testimony heard by the court on that issue; whereupon verdict was rendered in favor of the plaintiff, and judgment entered on the verdict that the defendant International answer over. On January 24th the International, by the same attorneys, filed a motion to quash the writ of summons directed to the International, in which motion it was alleged that the said attorneys appeared specially and moved that the return to the writ of summons theretofore issued against it be quashed, because White, upon whom the writ was served, was not at the time of the issuance of the writ, nor since then, nor prior thereto, nor at that time, an agent or officer of the International, upon whom process could have been served legally for and on behalf of the defendant. The plaintiff interposed a motion ne recipiatnr to this motion to quash, which motion ne recipiatnr was granted; whereupon the International filed the general issue plea.

At this stage of the proceedings, upon suggestion and affidavit, the case was removed from Frederick County to Carroll County for trial. The docket entries after the case reached Carroll County show that, on June 5th, 1930, issue was joined short and case submitted for trial before the court; demurrers of all defendants to narr overruled: “motion and leave to amend narr by interlineation by changing figure 1 and the word fifteen to twenty-five and amendment made changing figure 1 and word fifteen to twenty-five and all pleas and replications refiled.” The trial was then proceeded with, and resulted in a verdict and judgment for the plaintiff. It is from that judgment the appeal here is taken. ⁴⁹⁰ The docket entries of the Carroll County court indicate that the demurrers to the declaration were overruled in that court; subsequent to which action came motion and leave to amend the declaration in the manner above indicated; and then “all pleas and replications refiled.” The record does not disclose any necessity for the court in Carroll County to pass upon the demurrers, they having been overruled by the court in Frederick County before removal of the case; and it would seem that the action of the Carroll County court on the demurrers was had before the amendment to the declaration, which in certain cases would create the necessity of refiling the demurrers and obtaining a new ruling thereon after the amendment. In this case, however, it is apparent that the change effected by the amendment is not such as would necessitate the refiling of the demurrers, because it in no sense altered the cause of action or the parties thereto.

Middendorf Co. v. Milburn Co., 137 Md. 583 , 113 A. 348 . We think it is clear that the only demurrers which were filed, namely, by the defendants Union No. 7 and White, were in fact overruled in such manner as require this court to pass upon the questions thereby raised as to the sufficiency of the declaration. There was, in fact, no demurrer to the declaration interposed by the International; its only demurrer being to the first replication to its plea to the jurisdiction. This demurrer was in a collateral proceeding independent of the main question raised by the declaration, which matter of jurisdiction should have been and was determined as a preliminary question.

This particular matter is of little consequence in the present case, for the reason that the demurrers to the declaration were interposed by two of the defendants, both or