Opinion
Decided September 26, 1927.
Pleading — Demurrer searches record — Petition considered on demurrer to third defense of answer — Conspiracy to deprive plaintiff of advantages of membership in union — Necessary to allege facts constituting conspiracy.
1. Under a demurrer to third defense in answer, court will examine petition since demurrer searches record.
2. In action for conspiracy to deprive plaintiff of advantages of membership in union it is not sufficient to plead that defendants conspired and confederated to damage of plaintiff; rule being that cause of action is not alleged unless facts are stated constituting conspiracy.
ERROR: Court of Appeals for Hamilton county.
Mr. Raymond Ratliff and Mr. Charles Rodner, for plaintiff in error.
Messrs. Pogue, Hoffheimer Pogue, for defendants in error.
This case was heard below on the demurrer to the third defense in the answer. The demurrer was on the ground that the third defense did not state a defense to the action. Under the rule, a demurrer searches the record. We therefore examine the petition.
The action, as presented by the petition, was an action at law to recover damages brought by a member of a local union affiliating with the International Alliance of Theatrical Stage Employes and Moving Picture Machine Operators.
In substance, the petition alleges that plaintiff, George W. Kisler, is a member in good standing with the Motion Picture Machine Operators' Local of the city of Huntington, W. Va.; that he is a resident of the city of Cincinnati at present, in which city there is an affiliated Motion Picture Machine Operators' Union Local No. 165.
The petition sets up that, under certain sections of the constitution and by-laws, the petitioner is entitled to a position in the jurisdiction of Local No. 165, defendant herein.
The petition then alleges that certain officers of Local No. 165 were changed by election, so that the control and designation of members to labor and work and of those of affiliated locals within the jurisdiction became and were in the hands of other officers; and alleges that the defendant's individual officers and the Local No. 165 "conspired and confederated together to deprive the plaintiff of employment and the advantages of membership in his said Local No. 369 of Huntington as resident of an affiliated local in the territory of the jurisdiction of defendant; that by said acts of conspiracy and confederation, the plaintiff is now, and has been, deprived of employment; and that it is impossible for him to secure or hold a position as a motion picture machine operator within this jurisdiction."
Enough of the petition has been set forth to show that the only thing charged in the petition against the defendants is that they conspired and confederated together to deprive the plaintiff of the advantages of membership, as above stated. No facts, acts, or conduct are alleged on which to base the action.
The question then is, In an action for conspiracy is it sufficient to plead that the defendants conspired and confederated to the damage of the plaintiff? The rule is that the mere charge of conspiracy is like a charge of fraud, a mere conclusion of law, and that unless the facts are stated constituting the conspiracy a cause of action is not alleged.
The rule is stated and the authorities compiled in Bates New Pleading, Practice, Parties, and Forms, Vol. 2, p. 1266 et seq.
We therefore conclude and hold that the facts constituting a conspiracy and connecting the defendants therewith must be alleged, and a mere allegation that they conspired and confederated together, without setting up the acts or facts constituting the conspiracy and the confederation, is not enough. The demurrer will therefore be sustained, as against the petition, and the petition in error will be dismissed.
Petition in error dismissed.
CUSHING, J., concurs.