VESTER HENDERSON, in Behalf of Himself, and All Other Members of Journeymen Barbers International Union of America, Local No. 709, Appellant,
MIGUEL UGALDE and FELIPE M. CHAOSS, Appellees
APPEAL from a judgment of the Superior Court of the County of Pima. Evo De Concini, Judge. Judgment reversed.
Messrs. Cusick and Lyons, for Appellant.
Mr. John L. Van Buskirk and Mr. C. T. Reddington, for Appellees.
This case comes from the Superior Court of Pima County located at Tucson, Arizona, and was tried before the Honorable Evo De Concini. The action was brought by the appellant on behalf of [61 Ariz. 222] himself, and all other members of Journeymen Barbers International Union of America, Local No. 709, and asks for a restraining order and damages against the appellees. The application for the order was based on the complaint alleging that the union entered into a contract with the appellees, who were licensed journeymen barbers, whereby the appellees agreed to keep their shop open only certain hours; maintain a certain minimum price for services and employ only union barbers, but instead the appellees were keeping their shop open after the hours agreed to in the contract.
To the complaint the appellees filed their motion for dismissal of the complaint on the grounds that "same is based upon a contract that is voidable and is without consideration and is in restraint of trade, and interminable."
In rendering judgment the trial court expressed the questions and issues to be as follows:
"1. Whether or not it is necessary for the parties to submit to the Barbers' Board for mediation before bringing action. 2. Whether or not there is 'Mutuality.'"
The court granted the motion of the appellees.
The statute referred to herein as one of the bases for the ruling of the trial court is Sec. 67-123, Arizona Code 1939, which reads as follows:
"Mediation. -- The board shall act as mediator and arbitrator in any controversy or issue relating to barbering which may arise between or among barbers, either as individuals or as organized groups."
In the case of Montaldo v. Hires Bottling Co., 59 Cal.App. (2d) 642, 139 P.2d 666, 667, which opinion was rendered in 1943, the court said:
"The defendant, Hires Bottling Company, has appealed from a judgment enjoining it from violating [61 Ariz. 223] the provisions of a collective labor agreement which it entered into with Bottlers Local Union No. 293 of the International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America, Branch No. 2, regulating the employment, wages, hours and services of workmen hired by the bottling ...