Dukes v. Brotherhood of Painters, Decorators & Paperhangers of America, Local Union No. 437

• Decision Date: 09 December 1950
• Citation: 191 Tenn. 495,235 S.W.2d 7,27 Beeler 495
• Parties: , 191 Tenn. 495, 26 A.L.R.2d 1223 DUKES v. BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS OF AMERICA, LOCAL UNION NO. 437, et al.
• Court: Tennessee Supreme Court

Page 7

235 S.W.2d 7

27 Beeler 495, 191 Tenn. 495, 26

A.L.R.2d 1223

DUKES v. BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS OF

AMERICA, LOCAL UNION NO. 437, et al.

Supreme Court of Tennessee.

Dec. 9, 1950.

T. W. Thomson, Knoxville, for plaintiff in error.

Thurman Ailor, Knoxville, for defendants in error.

BURNETT, Justice.

The plaintiff in error, Dukes, brought this suit against the defendants, the local union, its officers and certain named individuals for having confederated and conspired together to injure him by taking away his means of earning a livelihood and preventing him from obtaining employment.

The original declaration was demurred to and when by motion of the plaintiff the declaration was amended it was again demurred to by the various defendants. The demurrer contained several grounds, all of which boiled into one, are to the proposition that admitting what is said in the declaration there is no cause of action stated. The trial judge sustained the demurrer to the declaration as amended, because: 'This suit is based on slander. The only defendant who is charged with making any alleged slanderous remarks is the defendant Runnion. Accepting the statement charged to Runnion as true, as must be done on demurrer, still there is nothing in the declaration which indicates that as a result of the remarks made by Runnion that the plaintiff's rights were violated or that he suffered any damages as a result thereof.'

Unquestionably if the declaration is treated as one in slander the action of the trial judge must be sustained because there are no libelous words per se used and no special damage averred. Fry v. McCord, 95 Tenn. 678, 33 S.W. 568; Benton v. Knoxville News-Sentinel Co., 174 Tenn. 661, 130 S.W.2d 106.

We have very carefully read and re-read the original declaration, the amendment, and the briefs in support of the appeal and are satisfied that the gravamen of the declaration is a suit against the defendants for unlawfully procuring the discharge of the plaintiff. We must, therefore, consider the suit on this basis and whether or not a cause of action is stated in the declaration.

The suit is against a local union, its various officers and other individuals, 'who are sued as officers and members of said local union No. 437, and also as individuals and representatives of all other members of said local union No. 437, * * *.' Such a suit is proper under the authority of Powers v. Journeymen Bricklayers Union No. 3, 130 Tenn. 643, 172 S.W. 284, L.R.A. 1915E, 1006; Barnes v. Fort, 181 Tenn. 522, 181 S.W.2d 881.

The declaration alleges in substance that the plaintiff in error is a painter by trade; that he had been a member of the local union No. 437 for twelve years; that on October 3, 1949, he was in the employ of a local corporation when an individual 'acting in behalf of the Local Union No. 437' came to the plaintiff's employer and told the employer that the plaintiff had been expelled from the union 'which statement was false' and demanded that his employer fire the plaintiff otherwise other painters on the job for this corporation would go on strike; that 'in order to further a plan to deprive the plaintiff of livelihood', one of the named defendants, Runnion, made the statement that the plaintiff had been fired from the union and could not work on union jobs 'all of which was false', and that this defendant procured the 'Painters, Decorators and Contractors Association' to inform his employer that he had been expelled from the union and he was no longer a union painter and to discharge him or that there would be a strike on the job 'which statement as to his expulsion in not being a union painter was false'. He then says that as a result of these statements and action on behalf of the union and the individuals who were representing the union as business agents and 'as the representative of the union' plaintiff was expelled or fired from his job and that he 'has been deprived of his rights of labor, and this act by the defendant union is predicated on malice and is an invading of the plaintiff's property rights as guaranteed to him under the United States Constitution and the Constitution of the State of Tennessee.'

The second count of the declaration is based upon alleged violation of Code, Section 11412.8 and 11412.10 which are a codification of portions of Chapter 36 of the Public Acts of 1947 known as the Tennessee Open Shop Law. These two sections of the Code, as relied upon by the plaintiff, are not applicable herein because they are directed toward the employer and not to any situation as represented by the declaration herein. For this reason the demurrer to the second count must be sustained.

The demurrer to the first count of the...