Opinion
December 22, 1933.
1. CONSPIRACY: Unlawful Act. A conspiracy is an agreement between two or more persons to do an unlawful act or to use unlawful means to do a lawful act.
An agreement to do an unlawful act is not actionable unless some act is done in performance of the agreement which results in damage to the party complaining.
To state a cause of action, the petition must allege the conspiracy, the unlawful act in pursuance of it and the resulting damage to plaintiff.
2. CONSPIRACY: Unlawful Act. Where plaintiff's petition alleged that the several defendants maliciously conspired to have plaintiff discharged as an employee of a clothing company, that a local union to which plaintiff belonged was to be disbanded, that all members were to be admitted into another local union except plaintiff who was to be denied membership, that the cutters and trimmers employed by the employer of plaintiff were threatened with discharge if they failed to carry out the agreement, but did not allege that defendants did any lawful act to carry out the conspiracy, it failed to state a cause of action.
3. CONSPIRACY: Unlawful Act: Conclusions. Allegation of a conspiracy to do unlawful acts to the damage of plaintiff and that allegations of certain acts in the pursuance of the conspiracy were unlawful states a mere conclusion of the pleader.
Appeal from Circuit Court of City of St. Louis. — Hon. Charles W. Rutledge, Judge.
AFFIRMED.
R.N. Rooks for appellant.
(1) The United Garment Workers of America provide that the board of trustees shall prosecute and bring suit at law and equity. Revised Statutes 1919, Section 1156, provide how voluntary organizations may sue through their trustees. Trustees of an association of an express trust authorizing them to sue as such under the above section must be a formal one as defined by Section 283 and need not be in writing in regard to the personal property. Weithuechter v. Miller, 208 S.W. 39; 5 C.J. 1367, sec. 108; Lily v. Tobin, 15 S.W. 618; Newton County Farmers' Fruit-Growers' Exchange v. Railroad Co., 2 S.W.2d 125; Syz v. Milkwagon Drivers, 24 S.W.2d 1080; Mayes v. United Garment Workers of America, 6 S.W.2d 333; State ex rel. Home Savings v. Lee, 288 Mo. 676; Adams Express Co. v. Met. St. Ry. Co., 126 Mo. App. 471; Met. St. Ry. Co. v. Adams Express Co., 145 Mo. App. 371; Weichtuechter v. Miller, 208 S.W. 39; McEntyre v. Live Stock Shipping Assn., 11 S.W.2d 77; Bruns v. Drivers Union, 242 S.W. 419; United Mine Workers of America v. Coronado Coal Co., 259 U.S. 244; R.S. 1919, secs. 13268, 13271. (2) It is a fraternal association as pleaded in paragraphs 11, 12 and 13 of the petition. Revised Statutes 1919, Sections 6398, 6402-29 and 9749, and have the right to incorporate under Sections 6409, 10264, 10267, 10284. 3 Words and Phrases, pp. 2942-43; Westerman v. K.P., 94 S.W. 470; Weithuechter v. Miller, 208 S.W. 39; O'Neill v. Grand Lodge Brotherhood Ry. Trainmen, 261 S.W. 128; Crebbs v. United Order of Foresters, 177 S.W. 766; Armstrong v. Modern Brotherhood of America, 149 S.W. 459; Mayes v. United Garment Workers, 6 S.W.2d 335; Hall v. Morrin, 293 S.W. 435; 5 C.J. 1634, sec. 101; Martin on Labor Unions, p. 386, sec. 313; State ex rel. v. Medical Society, 243 S.W. 341. (3) The petition alleges that the United Garment Workers of America is a trade union, has 177 local unions, 80,000 members and assets of $579,950.34. 12 C.J. 583, sec. 102; State v. K.C. Live Stock Exchange, 109 S.W. 675; Carter v. Oster, 112 S.W. 995; Heim Brewing Co. v. Belinder, 71 S.W. 691; Wales Miners Federation v. Glaxmorgan Coal Co., 2 Ann. Cas. 436; Hopkins v. Oxley Stave Co., 83 F. 912. (4) The petition states that the United Garment Workers of America has a constitution governing the international and local unions. 12 C.J. 543, sec. 5; Alcott Planing Mill v. Fuelle, 114 S.W. 1013; Lohse Door Co. v. Fuelle, 114 S.W. 997. (5) The petition alleges that plaintiff was illegally expelled from the United Garment Workers of America and was thereby damaged. Martin on Labor Unions, sec. 325, p. 397; Oakes on Organized Labor, p. 77, sec. 69; Mullin v. Seegers, 294 S.W. 745; Cruetcher v. Eastern Division ORC, 132 S.W. 307; St. Louis v. Thompson, 113 S.W. 144. (6) The petition alleges that plaintiff was employed at the Marx Haas Clothing Company for a long time, in a lawful occupation, and that all the defendants conspired to have plaintiff discharged, and was thereby damaged. Oakes on Labor, p. 1089, p. 775, sec. 490, pp. 765, 766; 16 R.C.L. 414, sec. 3; Berry v. Donovan, 188 Mass. 353; Brennan v. United Hatters, 73 N.J.L. 729.
Barth Baron for Marx Haas Clothing Company.
(1) Plaintiff's petition is incoherent and presents no tangible or understandable issues and, therefore, the judgment sustaining the demurrer should be affirmed. Darrow v. Briggs, 261 Mo. 278. (2) Plaintiff does not allege that he was hired by Marx Haas Clothing Company for a definite time. The law in Missouri is well settled that a contract to hire for an indefinite time is a hiring at will and may be terminated by either party at any time, in which event no action can be sustained for a wrongful discharge. Harrington v. Brockman Comm. Co., 107 Mo. App. 424, 81 S.W. 629; Brookfield v. Drury College, 139 Mo. App. 365, 123 S.W. 86; Douglas v. Met. Life Ins. Co., 297 S.W. 90. (3) Even if plaintiff had applied for admission to Local Union 229 of the United Garment Workers of America in September, 1927, and said local union for any reason would have refused to admit him into membership, plaintiff would have no right of recovery. The members of a labor union have a right to say whom they will admit to association with themselves, and cannot be compelled to admit others to membership, and the fact that one may suffer injury by reason of nonadmission to membership affords no ground upon which the court may decree his admission. The basis for refusal of admission is immaterial. The restriction might be grounded on citizenship, nationality, age, creed, profession, numbers, etc. This power is incident to their character as voluntary associations. Mayer v. Stonecutters, 47 N.J. Eq. 519, 20 A. 492; Greenwood v. Building Trades Council, 71 Cal.App. 159, 223 P. 823; Oakes on Organized Labor Industrial Conflicts, sec. 42; Martin on Labor Unions, sec. 302. (4) It is well settled that an agreement between a union and an employer whereby the latter is to employ only members of the former is valid as not against public policy or in restraint of trade, and one not a member of the union who, because of the contract, is unable to obtain a job or whose discharge is brought about by such contract has no cause of action, Shinsky v. O'Neil, 232 Mass. 99, 121 N.E. 790; Reihing v. Electrical Workers, 94 N.J.L. 240, 109 A. 367; Jacobs v. Cohen, 183 N.Y. 207, 76 N.E. 5. (5) The allegations in plaintiff's petition that the defendants, through ill will toward plaintiff, maliciously, wickedly, etc., conspired to discharge plaintiff and exclude him from the United Garment Workers of America are merely conclusions of the pleader in that they present no facts and are therefore bad on demurrer and their truth is not admitted thereby. Ruggles v. International Assn. of Bridge, Structural, etc., Ironworkers, 52 S.W.2d 863; Root v. Anderson, 207 S.W. 255; Truax v. Bisbee Local 380, etc., 19 Ariz. 386, 171 P. 121; Eastman Kodak Co. v. Warren, 108 Misc. 680, 178 N.Y.S. 17; Goodman Bros., Inc., v. Ashton, 211 A.D. 769, 208 N.Y.S. 84; Stephen Peabody, Jr., v. Travelers Ins. Co., 205 N.Y.S. 538, 210 A.D. 661; Kisler v. Motion Picture Machine Operators, 26 Ohio App. 284, 159 N.E. 494. (6) Facts showing the performance of a condition precedent, or excusing nonperformance, must be alleged. Streib v. Local Lodge No. 27, 40 S.W.2d 520. (a) A denial of plaintiff's allegation that he was informed he could not join would merely put in issue the question whether he was informed. It would not raise the question whether he was so informed by the union or its proper representative because he does not allege the union informed him; therefore, a denial of plaintiff's allegation would be an immaterial traverse. Meeker v. Railroad, 255 S.W. 342; Nichols Sheppard Co. v. Hubert, 150 Mo. 624, 51 S.W. 1031; Wrightsman Petroleum Co. v. Nesbit, 101 Okla. 48, 222 P. 957; Sebastian County Rd. Imp. Assn. v. Hocott, 141 Ark. 310, 217 S.W. 258; Winneshick Co. v. Allamakee Co., 62 Iowa 559, 17 N.W. 753.
John P. Leahy for United Garment Workers of America and others.
(1) The defendant, United Garment Workers of America, being a voluntary unincorporated association is not a suable entity. Mayes v. United Garment Workers of America, 320 Mo. 10, 6 S.W.2d 335; Newton County Farmers' Fruit-Growers' Exchange v. Ry. Co., 326 Mo. 617, 31 S.W.2d 804. (2) A voluntary unincorporated association cannot in the absence of statutory authority sue or be sued. Newton County Farmers' Fruit-Growers' Exchange v. Ry. Co., 326 Mo. 617, 31 S.W.2d 804. (3) Voluntary associations exist under the common-law right of contract and are not entities having an existence apart from their members. C.J. 1336, sec. 6, p. 1369, sec. 118. (4) The powers and privileges of associations must be conferred by statute. Ruggles v. International Assn. of Bridge, Structural and Ornamental Ironworkers, 52 S.W.2d 860. (5) The petition fails to state that the appellant ever made an insurance contract with the defendant, United Garment Workers of America, or that a policy or certificate was ever issued to him. Ruggles v. International Assn., supra. (6) The instant case is not a suit on an insurance contract, therefore the court has no jurisdiction of this case. Ruggles v. International Association, supra. (7) The averments in the petition are legal conclusions and not admitted by the demurrer. Ruggles v. International Assn. of Bridge, Structural and Ornamental Ironworkers, 52 S.W.2d 863. (8) The decision of the Supreme Court of the United States in the case of United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 Sup. Ct. 570, does not apply to the instant case. Ruggles v. International Assn. of Bridge, Structural and Ornamental Ironworkers, 52 S.W.2d 863. (9) A local union of a labor organization (which includes the members of that local) claiming that its charter has been improperly revoked must exhaust its remedy in the organization before resorting to the courts. O'Brien v. Musical Mut. Protective Benevolent Union, 64 N.J. Eq. 525; Local Union No. 1006 v. Brotherhood of Painters, Decorators Paperhangers, 149 N.Y.S. 1025. (10) When the charter of a local union of a labor organization is revoked its members cease to be members of the general organization. The status of one seeking membership in a labor organization after its termination by the revocation of its charter of a local union of which he was a member is that of a new applicant, and not that of a member seeking reinstatement; hence, a refusal to reinstate him in the local is not reviewable by the courts. Simmons v. Berry, 210 A.D. 90, 205 N.Y.S. 442; Taussig v. Weber, 205 N.Y.S. 605. (11) Several causes of action have been improperly united in the third amended petition. Sec. 412, Bliss on Code Pleading; Scott v. Robards, 67 Mo. 289; Sec. 765, R.S. 1929; Liney v. Martin, 29 Mo. 28; Repetto v. Walton, 313 Mo. 184, 281 S.W. 416; Penny v. Alliance Co., 259 F. 588.
Action to recover damages because of an alleged conspiracy. Each of the defendants demurred to the petition. The demurrers were sustained and plaintiff declining to further plead, judgment went for defendants and plaintiff appealed.
The pertinent allegations of the petition read:
"That on November 22, 1926, the United Garment Workers of America illegally and wrongfully and willfully and maliciously and without cause revoked the charter of Local Union No. 26 of the United Garment Workers of America, of which the plaintiff was a member.
"That the United Garment Workers of America failed to give said Local Union a hearing or a trial in violation of Article 13, Section 19 of the Constitution of the United Garment Workers of America. No local union shall be suspended or expelled from the United Garment Workers of America by the General Executive Board without first having the charges tried and decided by the District Council.
"That after the charter of Local Union No. 26 of the United Garment Workers of America was revoked the members of said Local Union organized a new union known as No. 26 United Clothing Cutters and Trimmers of St. Louis, and thereupon entered into a contract with Marx Haas Clothing Company whereby said Local Union was to work under the contract in effect between the United Garment Workers of America and the Marx Haas Clothing Company.
"That said contract continued in effect between Local Union No. 26 known as the United Clothing Cutters and Trimmers of St. Louis, and Marx Haas Clothing Company from November 26, 1926, to September 1, 1927. Plaintiff states that he was employed at the Marx Haas Clothing Company during this period of time or up to April 1, 1927.
"Plaintiff further states that the defendants Marx Haas Clothing Company and the United Garment Workers of America, and Otto Kaemmerer, Menter Frank, Harry Kelley, Nathan Block, Isidore Driben, Max Gold, Clarence Lang, Frank Fitzgerald, Harry Huber, Paul Knudson, and Harry Voss, all defendants, and each of them acting severally and jointly, willfully, wickedly, and maliciously and through ill-will against plaintiff without any cause conspired with each other, that the plaintiff was to be discharged as an employee of the Marx Haas Clothing Company; that local Union No. 26 United Clothing Cutters and Trimmers of St. Louis, Missouri, was to be disbanded, that all of their members would apply for membership in the United Garment Workers of America and would be admitted in Local Union No. 229 United Garment Workers of America; except plaintiff was to be denied membership in the United Garment Workers of America. That the Cutters and Trimmers in the employ of Marx Haas Clothing Company were to be threatened that they would be discharged by the Marx Haas Clothing Company if they failed to carry out the aforesaid agreement. Plaintiff states said conspiracy was carried out by defendants above mentioned and as a direct result of said conspiracy the plaintiff had been denied the right to work in a union shop; caused all union manufacturers to be prejudiced against plaintiff resulting in plaintiff being discharged as a clothing cutter by Marx Haas Clothing Company on April 1, 1927, said threats did cause local union No. 26 Cutters and Trimmers of St. Louis to be disbanded on September 6, 1927.
"Plaintiff further states that all the cutters and trimmers of Marx Haas Clothing Company did apply for membership in the United Garment Workers of America, except the plaintiff, he being informed that it had been and was agreed by and between the defendants that plaintiff could not be admitted as a member of the United Garment Workers of America, so preventing the plaintiff from obtaining any employment as a clothing cutter in a union shop since said discharge.
"Plaintiff states that he has not been permitted to obtain employment in any Union Clothing House or Union Shop, as a clothing cutter and cannot now obtain such employment in any factory or clothing house and has not been employed in any such factory or clothing house since April 1, 1927, because of the unlawful actions of said defendants, as aforesaid, and because the United Garment Workers of America, Marx Haas Clothing Company, Otto Kaemmerer, Menter Frank, Harry Kelley, Nathan Block, Isidore Driben, Max Gold, Clarence Lang, Frank Fitzgerald, Harry Huber, Paul Knudson, and Harry Voss, all defendants and each of them acting severally and jointly, willfully, wickedly, and maliciously and through ill will against plaintiff without cause conspired with each other, that the plaintiff was to be discharged as an employee of the Marx Haas Clothing Company and that he was discharged by the Marx Haas Clothing Company.
"Said conspiracy and threats did cause the independent local Union No. 26 Cutters and Trimmers of St. Louis to be disbanded, and did cause the cutters and trimmers employed at Marx Haas Clothing Company to apply for membership and to be admitted in Local Union No. 229 United Garment Workers of America, and did cause plaintiff to be informed that it had been agreed to admit all the former members of the local union No. 26 except plaintiff, that he would not be admitted, resulting in plaintiff being denied the right to work in any union clothing manufacturing company in St. Louis, or any other place.
"Plaintiff states that as a result of said conspiracy he has lost the right to share in the general benefit of the United Garment Workers of America, has lost his property right, the Death Benefits in the United Garment Workers of America, amounting to $400, has lost his earnings since his discharge, April 1, 1927, from Marx Haas Clothing Company as a garment cutter, said earnings amounting to $2,000 per annum from and after April 1, 1927, and he will continue to lose his earnings permanently in the future by reason of said unlawful revoking of the charter of local union No. 26 United Garment Workers of America without cause or right, and in the said conspiracy between aforesaid defendants, to have plaintiff discharged by Marx Haas Clothing Company and the disbanding of the independent local union No. 26 United Clothing Cutters and Trimmers of St. Louis, Missouri, and by the refusal to re-admit plaintiff into the United Garment Workers of America."
The prayer of the petition is for $15,000 actual and $15,000 punitive damages.
The petition alleges that the United Garment Workers of America revoked the charter of Local Union No. 26 of that organization, of which plaintiff was a member. The pleader does not allege or attempt to allege that the other defendants or either of them had anything whatsoever to do with the revocation of the charter, and no recovery is sought for the revocation of the charter alone. The petition alleges the things which the defendants unlawfully conspired to do, then states that as a result of said conspiracy plaintiff was damaged in the manner thereafter alleged in the petition. Obviously the petition seeks to state a cause of action for an unlawful conspiracy on the part of defendants to injure plaintiff, and as the petition does not allege that any of the defendants other than the United Garment Workers of America had anything whatsoever to do with the revoking of the charter of the local union of which plaintiff was a member, such revocation was no part of the alleged conspiracy and has no place in the case except as a matter of history or inducement. It follows that the sufficiency of the petition to state a cause of action for an unlawful conspiracy must be determined from its remaining allegations. "A conspiracy is an agreement or understanding between two or more persons to do an unlawful act, or to use unlawful means to do an act which is lawful. . . ." [Dietrich v. Cape Brewing Ice Company, 315 Mo. 507, 286 S.W. 38; Harelson v. Tyler, 281 Mo. 383, 219 S.W. 908.] However, an agreement to do an unlawful act is not actionable unless some act is done toward the performance of the agreement which results in damage to the party complaining. A mere agreement to do an unlawful act, without more, could not injure any one. It has been said that "the charge of combination and conspiracy cannot of itself constitute a cause of action, however unlawful may be its purposes. It must be coupled with some unlawful or wrongful act to make it available." [Alexander v. Relfe, 9 Mo. App. 133, 143.] In an action in the nature of a conspiracy, the gist of the action is not the conspiracy, but the damage done to plaintiff by the unlawful acts. The only purpose in charging the conspiracy is to make the defendants responsible for the acts done by each other in pursuance of the common design. [Hunt v. Simonds, 19 Mo. 583, 589.] It is, therefore, clear that in order to state a cause of action for an unlawful conspiracy, the petition must not only allege that defendants conspired and agreed to do an unlawful act, but it must also allege that in pursuance of the conspiracy defendants did some unlawful act or acts which resulted in damages to the plaintiff. We will examine plaintiff's petition in the light of the rule stated.
Relative to the conspiracy the petition alleges that "defendants and each of them acting severally and jointly, willfully, wickedly and maliciously and through ill will against plaintiff, without any cause conspired with each other that the plaintiff was to be discharged as an employee of the Marx Haas Clothing Company; that local union No. 26, United Clothing Cutters and Trimmers of St. Louis, Missouri, was to be disbanded, and that all of their members would apply for membership in the United Garment Workers of America and would be admitted in Local Union No. 229, United Garment Workers of America; except plaintiff was to be denied membership in the United Garment Workers of America. That the Cutters and Trimmers in the employ of Marx Haas Clothing Company were to be threatened that they would be discharged by the Marx Haas Clothing Company if they failed to carry out the aforesaid agreement."
It is clear that the allegations of the petition sufficiently charge that defendants conspired and agreed to perform unlawful acts, but as an agreement to perform unlawful acts is not actionable unless such acts are, in fact, performed to the damage of the complaining party, we will further examine the petition and determine whether or not it alleges that such acts, or any of them, were performed to the damage of plaintiff.
The petition alleges that the conspiracy was carried out by defendants and caused plaintiff to be discharged by the Marx Haas Clothing Company. It likewise alleges that the conspiracy caused all of the things about which the petition complains, but it does not allege that defendants did any unlawful act looking to the carrying out of the conspiracy. As heretofore stated, the gist of an action in the nature of a conspiracy is not the unlawful agreement but the damage done to plaintiff by unlawful acts committed by the defendants. It is, therefore, indispensable that the petition charge the defendants with the commission of unlawful acts which resulted in damage to plaintiff. It is true the petition alleges that the conspiracy was carried out by defendants, and that the conspiracy caused the things about which the plaintiff complains, but it does not charge defendants with the commission of any unlawful act in furtherance of the conspiracy. The allegation that defendants carried out the conspiracy, and that the conspiracy caused the things about which complaint is made, do not charge defendants with the commission of any unlawful act, but are mere conclusions of the pleader, and for that reason the petition does not state a cause of action.
It follows that the action of the court in sustaining the demurrer to the petition and rendering judgment for defendants should be affirmed. It is so ordered. All concur.