Brewster v. Miller | Cases | Westlaw

The plaintiff, Brewster, is a citizen of Louisville. From the allegations of the petition, there is an association in that city known as the “Funeral Directors' Association.” The defendants in this action are undertakers, and members of the association, except the defendant the Louisville Coffin Company, which is engaged in the business of manufacturing caskets. On the 10th of December, 1893, the wife of the plaintiff died. He went to the defendant C. Miller's Sons to engage their services, and to buy articles necessary for her burial. They refused to accept employment or furnish the articles necessary for that purpose, because, as they claimed, the plaintiff was indebted to them in the sum of $52 for burying his father. The defendants other than the coffin company refused to perform the necessary services and furnish the necessary articles for the burial of plaintiff's wife. This refusal was made because of this claim of C. Miller's Sons, that Brewster was indebted to them for previous services, etc., as stated. This is not a suit for the violation of a contract made by either of the defendants, but because they would not enter into one with the plaintiff, and furnish the services and the materials which he desired. It is alleged that the Funeral Directors' Association is a trust and confederation, and, by reason of the terms and purposes of the trust, combination, and conspiracy, the defendants refused to furnish any of the materials or render services necessary for the burial of the plaintiff's wife, and that the defendants refused for the purpose of enforcing, by duress and oppression, the collection of the debt due C. Miller's Sons. The articles of the association and by–laws, which plaintiff claims make it an unlawful trust and a combination in restraint of trade, are as follows: Article 5 of the constitution reads: “Each and every member of this association who shall, either directly or indirectly, sell, exchange, give, or hire any part of his goods or equipments to or from, or in any way aid or assist, any funeral director or branch establishment, not a member of this association, shall on conviction thereof, after a fair an impartial trial, be fined for each and every offense as provided in article 6 of this constitution.” Section 1 of article 6 reads as follows: “If any member of this association be found willfully guilty of violating any part of this constitution, by–laws, rules, or regulations that may now or hereafter be adopted for the government of this association, where the penalty is not specified in the laws, shall, if convicted, after a fair and impartial trial and investigation of the same, be fined ten (10) dollars for the first offense, twenty (20) dollars for the second offense, fifty (50) dollars for the third offense, and expulsion for the fourth offense.” Sections 1 and 2 of article 3 read as follows: Section 1: “All manufacturers and dealers in caskets, coffins, and funeral directors' supplies, of every name and nature whatever, are hereby requested not to sell any articles in our line, to any funeral director or other parties, for use within the jurisdiction of this association, unless he or they be members hereof in good standing.” Section 2: “If any manufacturer, dealer, or traveling salesman of the same shall not fully and in every respect comply with the requirements of section 1 of this article, then we, the members of this association, hereby agree and pledge ourselves to withdraw our patronage from him and the house represented, and will not purchase goods from them.” Sections 1 and 2 of article 9 read as follows: Section 1: “All manufacturers, liverymen, and dealers in our line of goods who signify their intention to abide by the constitution, by–laws, rules, and regulations of this association, who shall hold a judgment or an execution for over three months unpaid against a member of this association, for goods or livery work *302 used in their business as funeral directors, are requested to give this association an immediate written notice thereof, stating all facts in the case.” Section 2: “Any member of the association who shall have a judgment or an execution standing against him, as described in section 1 of this article, without good and sufficient cause, which shall be decided by the members present at any regular meeting, after a fair and impartial investigation, if it be found that the member has met with no unusual misfortune, he shall be expelled, or shall be given not to exceed ninety days to pay the same, and, if not paid at the expiration of the given time, he shall then be expelled.” Section 2 of article 10 reads as follows: “Any member who shall be found guilty of expressing his opinion unfavorably on a reasonable and just bill of any other member, to any party not a member hereof, shall, if convicted, after a fair trial, be fined according to article 6 of constitution.” Article 14 of constitution reads as follows: “That there shall be established by the association a delinquent list, upon which shall be recorded the names of all persons who do not pay their bills. The association shall keep this list, and furnish members with all names that are handed to be recorded on the same. The members shall each enter in a book for the purpose (which book shall be furnished to each member by the association) all names, amount of indebtedness, date of bills, and F. D. to whom same is owing, as soon as received from the association.” Section 2 of article 4 of the by–laws of said Funeral Directors' Association reads as follows: “The delinquent secretary shall receive from the members a complete list of all the parties who fail to pay their bills for the burial of their dead. He shall record all such names in a proper book procured by the association. He shall enter all lists furnished him in his book, and immediately send copy of the same to each member of this association, and all members shall be allowed access to the delinquent secretary's book at any time, and to take a copy of the same should they wish to do so. He shall be allowed six dollars for his services.” Sections 1, 2, and 4 of article 11 of the by–laws are as follows: Section 1: ““Members of this association shall furnish a list to delinquent secretary, from time to time, of all parties who do not pay their bills for the burial of their dead.” Section 2: “No member of this association shall wait upon any person who is indebted to any other member of this association until such indebtedness is settled, except it be for the burial of the person so indebted, in which case the undertaker having charge shall use every endeavor to have the old account settled; and any member who shall furnish articles to a person named in the printed ‘Delinquent List,’ or who shall persist in furnishing goods after having been notified by another member that they are indebted to him, shall be punished by a fine of not less than fifty (50) dollars, or a larger amount, at the discretion of the association.” Section 4: “No member of this association shall accept any order for goods or work from any one who has previously called in another member, and with whom said party could not make satisfactory financial arrangements, without said member of the second part paying all claims of said member of the first part, and taking all chances for collection on his own responsibility, as no protection will be afforded him through the medium of the delinquent list.” Sections 1, 2, 6, 7, and 9 of article 12 are as follows: Section 1: “Any member of this association who shall purchase goods of any manufacturer, dealer, or jobber who is not a member or recognized by the National Burial Case Association shall be fined in the sum of fifty dollars.” Section 2: “Whenever there shall be a member of this association located in a suburban village or town, where there is a local cemetery, said members shall, if they desire, have the association establish a price for hearses and carriages to said cemetery; but in no case shall said member or members be allowed to hire hearses and carriages for less than the published price list to any cemetery other than the ones mentioned in said exceptions, and any violation of the above section shall be punished according to article 6 of the constitution.” Section 6: “Whenever a member of this association shall be called upon to superintend a funeral, for which he does not furnish a case or casket, a charge shall be made of not less than five (5) dollars for personal services, and a reasonable larger amount shall be charged should the engagement require extra attention; and any neglect to make such charge shall lay the member so doing liable to penalties, as per article 6 of constitution.” Section 7: “All members of this association are allowed to make a discount of five per cent. on all funeral bills when a case or casket is furnished, when said bills are paid within thirty (30) days from date of burial; and any excess of five per cent. is positively prohibited, and no discount shall be allowed on bills where no case or casket is furnished.” Section 9: “It shall be the duty of each member of this association, should he know of any other member of this association who is violating the constitution, by–laws, rules, or regulations, to report the same with proof to the executive committee.”

It is contended that the association is a violation of section 3915 of chapter 101 of the Kentucky Statutes, which reads as follows: “That if any corporation under the laws of Kentucky, or under the laws of any other state or country, for transacting or conducting any kind of business in this state, or any partnership company, firm or individual, or other association of persons, shall create, establish, organize or enter into, or become a member of, or a party to, or in any way interested in any pool, trust, combine, agreement, confederation or understanding with any other corporation, partnership, individual or person or association of persons, for the purpose of regulating or controlling or fixing the *303 price of any merchandise, manufactured articles or property of any kind, or shall enter into, become a member of, or party to, or in any way interested in a pool, agreement, contract, understanding, combination or confederation having for its object the fixing or in any way limiting the amount or quantity of any article of property, commodity or merchandise to be produced or manufactured, mined, bought or sold, shall be deemed guilty of the crime of conspiracy, and punished therefor as provided in the subsequent sections of this act.” Section 3917 of this chapter imposes a penalty, by way of fine or imprisonment, or both, for the violation of section 3915. Section 3918 declares that a contract, agreement, or understanding in violation of provisions of the sections of this act shall be null and void; and any purchasers of property or article, or of any commodity, from any individual, company, or corporation transacting business contrary to the sections of the act, shall not be liable for the price or payment of such article or commodity or property, and may plead and rely on the act as a complete defense to any suit for such price or payment.

It is hardly necessary to observe that this is not an indictment against the members of the Funeral Directors' Association for the violation of section 3915, nor is it an action to enforce any contract or agreement made in violation of that section or the chapter of which it is a part. This association may be guilty (which we do not decide, as the question does not arise here) of the violation of this chapter of the Kentucky Statutes, and yet the plaintiff would not have a cause of action against the members thereof. Although the association might control and fix the price of property, merchandise, etc., and in so doing be guilty of a violation of the statute, yet, if they refused to sell such merchandise or property, it does not follow that one could maintain an action for damages, because of their refusal to sell to him. As we have said, this action asserts a claim for damages, because they would not enter into a business transaction with him. The only question which we have to consider in this case is as to whether the plaintiff is entitled to maintain this action for such refusal. Some of the purposes of the association, as expressed in its articles, could be in violation of this chapter of the Kentucky statute, yet other articles of the association might not be in violation of it, and the purposes, as expressed in them, be entirely proper and legal. The part of the articles which we feel is pertinent to the consideration of the question involved in this case is that which declares that no member of the association shall wait upon any person who is indebted to any other member of the association until such indebtedness is settled, except it may be for the burial of the person so indebted, and that, where a member violates such provision of the laws of the association, he is to be fined a given amount. We think Mr. Addison lays down the correct rule in his work on Torts, when he says, in volume 2, § 850: “A criminal proceeding, by way of indictment, lies for the mere act of conspiring; but a civil action is not maintainable unless plaintiff has been aggrieved or has sustained ‘actual legal damage’ by some overt act done in pursuance of the conspiracy.” So, even if some of the articles of this association constitute a trust or conspiracy, still, if there was no overt act done in pursuance of such illegal provisions which produced “actual legal damage” to the plaintiff, he could not maintain his action. It would be a question with which the state should deal. We do not think the article of association which we have said was pertinent to this inquiry is in violation of the statute, or an offense at common law. It simply provides that the members of the association are not to render services for or furnish burial material to any person who has become indebted to a member of the association, and fails or refuses to discharge it. One has the right to decline to enter into a business undertaking with any one. The law does not impose such an obligation upon any one. This being true, any number of persons can enter into an agreement by which they can decline to assume business relations with or to enter into any contract with one or more persons. If Brewster was indebted to Miller's Sons, then they had the right to decline to give him an opportunity to increase his indebtedness or refuse to furnish material for the burial of his wife, unless he paid the claim which Miller's Sons asserted against him. As those who are members of the Funeral Directors' Association, for a good reason, or for no reason, had the right to decline to render services or furnish burial material, and, if they saw proper, to decline to render services because Miller's Sons asserted a claim against Brewster, their refusal creates no legal liability against them. It is immaterial, so far as Brewster is concerned, as to what reasons may have influenced them to decline employment, or to refuse to furnish the burial material which he desired. Miller's Sons might have asserted a claim against Brewster which had foundation in neither morals nor law; yet if the members of the association other than Miller's Sons chose to be influenced by it, and to decline the employment, etc., Brewster has no cause of action against them. This is not an action against Miller's Sons for libel or slander, neither is it one against members of the association for libel or slander, but, as we have said, was for an alleged conspiracy, etc., of the members of the Funeral Directors' Association. There is no claim asserted for damage to his personal character or business reputation. Cooley, Torts, p. 278: “It is a part of every man's civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or *304 malice. With his reasons neither the public nor third persons have any legal concern.” Again, on page 688, he says: “The exercise by one of his legal rights cannot be a legal wrong to another. *** Whatever one has the right to do, another can have no right to complain of.” Heywood v. Tillson, 46 Am. Rep. 373, and Payne v. Railroad Co., 49 Am. Rep. 666, are to the same effect. In Manufacturing Co. v. Hollis, 54 Minn. 225, 55 N. W. 1121, the court said: “No case can be found in which it was ever held that at common law a contract or agreement in general restraint of trade was actionable at the instance of third parties, or could constitute the foundation of such an action. The court sometimes calls such contracts ‘unlawful,’ or ‘illegal,’ but in every instance it will be found that these terms were used merely in the sense of ‘void’ or ‘unenforceable,’ as between the parties; the law considering the disadvantage so imposed upon the contract a sufficient protection to the public.” It was also held in Schulten v. Brewing Co., 96 Ky. 224, 28 S. W. 504, that it was not unlawful for a number of persons to associate themselves together to protect themselves by lawful acts from dishonest debtors; that an agreement similar to the one in question in this case, that they would not sell to one who was indebted to the association, was lawful, and for which no action could be maintained. It was contended in that case, as in this, that the association was trying to compel the payment of a debt, by duress, which was asserted against the plaintiff. In Schulten v. Brewing Co. the court held that there was not a sufficient denial that the plaintiff was indebted, in the sum claimed, to the member of the association, but the court said: “If he was not indebted to the defendant, the Bavarian Brewing Company, then the defendants were guilty of an unlawful act in trying to make him pay something he did not owe, by refusing to sell him beer.” The court did not in that case say what would be a legal consequence of an unlawful act in trying to make him pay something which he did not owe. If a conspiracy had existed in that case or in this case to have compelled the party, by duress, to pay a sum which he did not owe, and under such force he had paid it, unquestionably an action could have been maintained to recover the sum so paid. Had the conspiracy succeeded in either case, then the damage sustained would have been the amount which had been wrongfully taken from him. The action would be to recover money tortiously obtained. The case of Carew v. Rutherford, 106 Mass. 1, cited by counsel for appellant, sustains this conclusion. That was an action to recover money which a party had been forced to pay by an unlawful conspiracy. In that case a mechanic was under the necessity to employ workmen to carry on his business, and by this conspiracy, in order to obtain a sum of money from him, which he was under no legal liability to pay, induced the workmen to leave his employment, by deterring or threatening to deter others from entering it, so as to render him reasonably apprehensive that he could not carry on business without paying the money demanded. The court in that case permitted him to recover the money which he had thus paid. The court said in that case: “It was no crime for any number of persons, without an unlawful object in view, to associate themselves together, and agree they will not work for or deal with certain men or classes of men, or work under a certain price or without certain conditions.”

If it be true, as plaintiff alleges, that the article of the association to which we have called attention was to force him to pay a debt which he did not owe, still no cause of action existed, as he did not pay the money demanded. A party may engage in the grocery business, selling the necessaries of life, and a hungry, starving man might call at his place of business, and seek to buy such articles of food as he needs; and, while we would say it was inhuman for the grocerman to refuse to sell him, yet it could not be said that his refusal was unlawful, and a cause of action could not be maintained against him for such refusal. When one desires to bury his dead, it may be an unfeeling act for an undertaker to refuse to furnish necessary material and necessary services to accomplish it; still his refusal to do so does not impose any legal liability upon him. Undertakers are approached by those in great bereavement, who desire their services to inter their dead. Under such circumstances, they do not feel disposed to demand, in advance, compensation. Regard for the feelings of those so bereaved forbids that they do so. However, if one has on a previous occasion received the services of the undertaker, and his material, and has refused or failed pay the bill, it is certainly not unreasonable to refuse to permit him to increase his indebtedness or to render him services. To afford mutual protection against such persons, it is not unlawful for the undertakers of the community to associate themselves together, and agree to refuse to render a like service to one who has refused or failed to pay such expenses in the past to some member of the association. There is no allegation that Brewster ever applied to the Louisville Coffin Company for the necessary material to bury his wife, but sought to make them liable, because, as is alleged, it would not sell any of the articles dealt in by it to any funeral director to use in Jefferson county unless he should be a member of the ““Funeral Directors' Association of the Fall Cities.” There is no law which attempts to regulate as to whom an individual or corporation shall sell articles of merchandise, such as coffins, etc. In this opinion we do not express any views as to whether the members of the Funeral Directors' Association have been guilty of a violation of chapter 101, Ky. St., in the matter of regulating and fixing the price of *305 merchandise, etc., but we simply pass upon the question before us, which is as to the right of the plaintiff to maintain this action. The judgment is affirmed.