Opinion
07-30-1909
UNITED GARMENT WORKERS OF AMERICA v. DAVIS.
Joseph A. Beecher, for complainant. John H. Backes, for defendant.
Suit by the United Garment Workers of America against Harry L. Davis to restrain the unlawful use of a union label. Decree for complainant on final hearing.
Joseph A. Beecher, for complainant. John H. Backes, for defendant.
HOWELL, V. C. The bill in this case is filed by the United Garment Workers of America, a voluntary association affiliated with the labor unions, to enjoin the use by the defendant of a label adopted by the complainants, and which it is alleged that the defendant was using without the permission of the complainant, and therefore wrongfully. The defense is that Wellman, the complainant's principal witness, who ordered a suit of custom-made clothes of the defendant, and knew that the defendant had no right to use the label, and that his shop was not unionized, as they call it, and insisted that the union label should be inserted in the suit, brought to the defendant's shop three labels which apparently had been taken from other garments, and directed that these three labels be attached to the garments that were made for him so that he could say that he was wearing union-made garments, and that this is the only occasion on which the defendant or any one in his employ ever used the complainant's label, and that this, therefore, is the offense against which the bill is directed. The defendant and all his witnesses testify that the garment workers' label was never used in the defendant's business except upon this occasion, but that he had the right to use another label called the "Journeymen Tailors' Label," and that this latter was the only one that was exploited by the defendant.
The statement made by Wellman is thathe was employed as general organizer of the Amalgamated Meat Cutters' & Butchers' Workmen of North America, and lived in Jersey City, where the defendant lives. He says that some two or three years prior to" the main transaction in this case he called at the defendant's place of business and ordered a pair of trousers. This garment was manufactured and delivered to him, and he gives the impression by his direct testimony that the defendant, Davis, furnished with the trousers the label of the complainant. As a matter of fact, I think that what the defendant Davis did was to furnish with this garment the label of the journeymen tailors. The first visit that Wellman made to the defendant's store which has relation to the controversy in this case was on April 8, 1907. He went there then at the request of the president of the complainant association, knowing that the defendant was not authorized to attach the complainant's label on the goods that he manufactured, and knowing, as he says, that the defendant was furnishing the label to others unlawfully. In this latter visit of Wellman's he ordered a suit of clothes for $15, on account of which he paid a deposit of $1 and got a receipt. On the following day he returned the receipt to the defendant's bookkeeper, and surrendered it, for the reason that it stated nothing about the character of the label which was to have been attached to the garments, and received from her Exhibit C1, dated April 9, 1907, which contains these words: "Suit to order; must have United Garment Workers of America label, $15; dep. $1, bal. $14." On this occasion John H. Charles was with him, and he states what took place in much the same terms as does Wellman. Wellman made a third visit a little later, and at that time tried on the suit and paid $10 more. He received on this occasion Exhibit C2, which, acknowledged the receipt of $11, and showed a balance of $4 yet to be paid, which receipt is signed by the defendant in person. On trying on the suit, he found that the label was not inserted, and he objected to taking the garments until the label had been stitched in; and he says that the defendant told him that the suit had not been pressed yet, and that, after it had been pressed, he would sew the label in. Within a day or two he made his fourth visit. A man named Berkson was with him. At that time he got his clothes and took a receipt for the $15, which is dated April 16, 1907, (Exhibit C3). These four visits are the ones that are positively sworn to by Wellman, and it may be well to state here that the defendant's witnesses testify to about twice as many visits. It came out in the case that Wellman had been deputed by the president of the complainant corporation to get evidence against the defendant preparatory to prosecuting him for wrongfully using the label, and that Wellman adopted the course of ordering the suit of clothes which was paid for by the complainant. Wellman's good faith in the transaction therefore turns out to be one of the questions at issue, because, if he who was the duly appointed agent of the complainant acted in bad faith in any way, the complainant must suffer therefor to the same extent as if it had authorized his wrongful act. At the time he ordered the trousers from the defendant in the latter part of March, he admits that he received the label of the journeymen tailors. He therefore knew that Davis had the right, or at least claimed to have the right, to furnish a union label on clothing manufactured by him; and Davis and his witnesses say that in all the conversations they had with Wellman about union labels it was the journeymen tailors' label that the defendant and his witnesses had in mind. In fact, Davis says that he was particular to exhibit a roll of journeymen tailor labels which he had in a drawer in the cashier's office in the store to be used as occasion might require.
It is quite manifest, therefore, that the decision of the case rests upon the question whether Wellman brought the garment workers' labels to the defendant's store, and ordered them inserted in the clothing that he had ordered. This is testified to by two witnesses on the part of the defendant—Rovins, who was a salesman in the store, and Bozelli, who was the cutter and whose table was in the rear part of the room in which the store was. They tell about the same story, and it will therefore be necessary to refer to the story of one of them only. Bozelli says that, when Wellman came to try on his clothes, he came in the store, and wanted to find out who was the foreman of the place. Rovins pointed out the witness Bozelli. Wellman came back in the rear part of the store where Bozelli was, and took three garment workers' labels from his pocket, and gave them to Bozelli, and showed him where to sew them on the garments. He asked the witness if he knew where those labels were to go. Witness said. "No," because he, witness, had never sewed any labels like that, and had never seen any labels like that sewed in a coat, whereupon Wellman proceeded to give definite instructions. The witness says that the labels looked as if they had been used on other garments and had been taken therefrom because there were perforations and basting threads in them which gave them the appearance of having been stitched in other garments. Just in the rear of the store there is a shop in which the tailors work. The witness Bozelli says that he took those labels into the shop and gave them to one of the tailors, and that he sewed them on. He says he does not know which tailor it was, that tailors move about, and he does not know where to find the man who actually did this sewing. There are two things about this testimony which lead me to distrust it. One is that it does not appear who the tailor was thatsewed the labels on the garments, or whether any effort was ever made to find him. This important event would have been remembered by any tailor, and I think it was incumbent upon the defendant to clear his skirts of the imputation made against him by the witnesses for the complainant by either producing the tailor or showing why he did not. In fact, it does not appear that the tailor who sewed on the labels is not yet in the defendant's employ. He may be there now for all that appears in the case. While the evidence on the part of the complainant on this point is extremely unsatisfactory and vague, the inherent improbability of the statement of Rovins and Bozelli must count strongly against them. There is another reason which leads me to consider the evidence on the part of the defendant unfavorably, and that is the different manner in which the three labels were sewed on the three garments. The one on the vest is testified to have been sewed on with a sewing machine, and the other two garments differently. I infer that it was meant to be stated that on the other two garments the labels were sewed on by hand. If it is true that the three labels were sewed on the three garments by the same tailor at the one time or as one piece of work, it is hardly possible that they would not be sewed on in the same manner.
Almost every fact in the case is controverted, and the statements of almost every witness contradicted. The evidence in so far as it turns upon the testimony of the witnesses is not clear, or can I say that the testimony of any witness standing alone by itself, and contradicted as it is by the other side, would be sufficient to entitle either party to a decree. There is no evidence whatever that the defendant has been guilty of any violation of the rights of the complainant except in the case now before the court, and this leads me to the conclusion that, while there ought to be an injunction against Davis restraining him from the violation of the rights of the complainant with respect to the label, yet that this decree should be without costs, and I will so advise.