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Mo. Portland Cement v. United Cement

OPINION FILED JULY 21, 1986.

MISSOURI PORTLAND CEMENT COMPANY, PLAINTIFF

v.

UNITED CEMENT, LIME, GYPSUM AND ALLIED WORKERS INTERNATIONAL UNION, DIVISION OF BOILERMAKERS, AFL-CIO, LOCAL NO. 438 ET AL., DEFENDANTS (MISSOURI PORTLAND CEMENT COMPANY, PETITIONER-APPELLANT; CARL MEDLEY, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Massac County; the Hon. James R. Williamson, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 5, 1986.

The plaintiff, Missouri Portland Cement Company, appeals from a bench trial in which the trial court entered a verdict and judgment for defendant Carl Medley finding him not guilty of indirect civil contempt. On appeal, the plaintiff raises the issue of whether the trial court's refusal to admit into evidence a videotape recording constituted an abuse of discretion prejudicial to the plaintiff. We reverse and remand.

On July 27, 1984, the circuit court of Massac County entered a reciprocal permanent injunction enjoining the defendants United Cement, Lime, Gypsum and Allied Workers International Union, AFL-CIO, Local No. 438, its officers, members, and all persons acting in concert with them, from:

"A. Threatening, intimidating, molesting, restraining, coercing, harassing, or in any other way interfering with Missouri Portland Cement Company, its realty and personal property, its employees, agents, suppliers, customers, business invitees, guards, their property and their family members, and all other persons attempting to enter, leave, or otherwise on the property of Missouri Portland Cement Company and those persons' property and their family members;

J. In any way creating an obstruction to the free flow of traffic in both directions on the county road leading to the company or any other public roads leading to the company; * * *."

In its order the court further stated:

"2. That the plaintiff shall post a copy of this Order at its main gate, which posting shall constitute good and sufficient actual notice to any other persons acting in concert with the parties who shall appear at plaintiff's main gate; * * *."

Following the order of the trial court, defendant Carl Medley was personally served a certified copy of the temporary restraining order. In addition, a certified copy of the reciprocal permanent injunction was served on the officers of the defendant Union, giving constructive notice to defendant Medley. Also, a certified copy of the reciprocal permanent injunction was posted at the front gate of plaintiff's plant located near Joppa, also giving "good and sufficient actual" notice to defendant Medley as prescribed in the court's order.

Following the order, on August 23, 1984, an incident occurred on Highway 45, a road leading to and from the plaintiff's plant, during which allegedly defendant Medley threw a brick through the wind-shield of a Pro-Sec van driven by its employee, Frank Benton, accompanied by Andrew Chambers, another employee of Pro-Sec. Their job included delivering food into the plaintiff's plant. At that time, the defendant Union still continued to picket the plaintiff's plant. In response to the incident, the plaintiff filed, on November 16, 1984, a sixth petition for order to show cause why defendant Medley should not be held in contempt of court for his failure to comply with the terms of the reciprocal permanent injunction. On November 16, 1984, the trial court entered an order finding "that an Order to Show Cause should be entered as to why Carl Medley should not be held in contempt of court for his failure to comply with the terms of the reciprocal permanent injunction. On November 16, 1984, the trial court entered an order finding "that an Order to Show Cause should be entered as to why Carl Medley should not be held in contempt, and punished therefore, by reason of his failure and refusal to comply with and abide by the Reciprocal Permanent Injunction entered by the Court in this cause * * *."

On March, 1, 1985, a bench trial was held regarding the indirect-civil-contempt charge against defendant Medley. At the bench trial, the following evidence was adduced. Andrew Chambers, the passenger of the van owned by Pro-Sec stated that after he left the plant, he proceeded to Joppa via Highway 45. After driving on the highway for several minutes, Chambers stated that a white pickup truck approached the van in the opposite direction. As the pickup truck approached, the driver of the truck threw a brick into the van's wind-shield causing not only scratches and cuts to its occupants but also $286 in damage to the van. Immediately after the incident, the driver and Chambers reported the incident to state trooper Sergeant Wetherington.

Traveling behind the van were Gordon and Kana Smith, who observed the incident. They described the pickup truck as an early 1970 model white Ford pickup with its tailgate either missing or down. Kana Smith gave a description of the driver as a white male, mid-thirties, muscular build wearing a white tee shirt and green and white ball cap. She also stated that the driver had a moustache.

After receiving a description of the pickup and its driver, Sergeant Wetherington drove to the plaintiff's plant to investigate. Upon arrival, he observed a white pickup truck matching the description he was given. When he asked who the owner was, defendant Medley identified the truck as his. Defendant Medley's clothing and physical appearance also matched the description given by Kana Smith. However, the defendant Medley stated that he had been at the picket line since approximately 6 p.m. that evening.

At the contempt hearing, defendant Medley continued to deny throwing the brick or being anywhere in the vicinity of the incident. In order to rebut defendant Medley's alibi and attack his credibility, the plaintiff attempted to admit into evidence a videotape. The plaintiff's videotape depicted the plant at the time between 6:22 and 7:25 p.m. on August 23, 1984. The plaintiffs proffered that the videotape would reveal, contrary to defendant Medley's and his witnesses' testimony, that he and his pickup truck were not present at the ...


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