Fittipaldi v. Legassie

• Decision Date: 12 April 1963
• Docket Number: AFL-CIO,No. 12,12
• Citation: 239 N.Y.S.2d 792,18 A.D.2d 331
• Parties: , 53 L.R.R.M. (BNA) 2175, 47 Lab.Cas. P 50,849 Guy FITTIPALDI, Glenn Fargo, Jr., Chester Loniewski, Ind. and on Behalf of other Persons Similarly Situated, and Floyd Morrison, Appellants v. Edward J. LEGASSIE, Ind. and as President of LocalUnited Brotherhood of Carpenters and Joiners of America,, and others, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 792

239 N.Y.S.2d 792

18 A.D.2d 331, 53 L.R.R.M. (BNA) 2175,

47 Lab.Cas. P 50,849

Guy FITTIPALDI, Glenn Fargo, Jr., Chester Loniewski, Ind. and on Behalf of other Persons Similarly Situated and Floyd Morrison, Appellants v. Edward J. LEGASSIE, Ind. and as President of Local No. 12 United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and others, Respondents.

Supreme Court, Appellate Division, Fourth Department.

April 12, 1963.

Costello, Cooney & Fearon, Syracuse, for appellants; Vincent A. O'Neil, Syracuse, of counsel.

Breed, Abbott & Morgan, New York City, for respondents; Lawrence M. Rulison, Syracuse, of counsel.

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, McCLUSKY and HENRY, JJ.

GOLDMAN, Justice.

Appellants are Union members whom this court reinstated to full membership rights after they had been wrongfully suspended or expelled through unfair trials and sham procedures. The facts of the Union's disciplinary action are found in our prior opinion, Fittipaldi v. Legassie, 7 A.D.2d 521, 184 N.Y.S.2d 226. We held that since the issue of damages, including lost earnings, had not been reached by the court on the first trial, a new trial should be had.

This appeal is now taken by three of the four original plaintiffs* who contend that upon the second trial, the court erred in finding that plaintiffs failed to prove any basis for compensatory damages, in refusing to consider an award of exemplary damages against the defendants as individuals and as officers of the unions, Local No. 12, the District Council and the International Brotherhood, and in awarding only such counsel fees as the plaintiffs had agreed with their attorneys would constitute the charge to them individually.

The trial court denied any compensatory damages, finding that the plaintiffs failed to show any loss of earnings. Although the record is not precise, because plaintiffs were either engaged in other income producing interests, during the period of their suspension, or out of work due to illness, or could not produce all income tax records, there was credible testimony as to this aspect of the case indicating that plaintiffs had been damaged and the court should have considered it. The difficulty of computation should not, in these cases, bar recovery, especially when the plaintiffs are obligated to minimize their damages by seeking work. (See Madden v. Atkins, 4 N.Y.2d 283, 297, 174 N.Y.S.2d 633, 643, 151 N.E.2d 73, 80, 74 A.L.R.2d 772.) As Professor Summers has said in 'The Law of Union Discipline: What the Courts Do in Fact', 70 Yale L.J. 175, 216:

'The amount of damages is usually based on the loss of earnings due to the discipline, including loss of fringe items such as health and welfare benefits and pension rights. Calculating these may be complicated, but creates no serious stumbling block.'

(See also Madden v. Atkins, 24 Misc.2d 4, 199 N.Y.S.2d 1009, 1015, 1016, modified 10 A.D.2d 989, 203 N.Y.S.2d 33.) Damages for loss of compensation in situations like those at bar by their very nature may not be susceptible of proof to a mathematical certitude. Difficulty in proving damages does not excuse their determination (1 Clark, New York Law of Damages, § 80, p. 139). A reasonable basis for the computation of approximate result is all that should be required here (Eastman Kodak Co. of N. Y. v. Southern Photo Material Co., 273 U.S. 359, 379, 47 S.Ct. 400, 71 L.Ed. 684; Duane Jones Company, Inc. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237, 247; Mills Studio v. Chenango Valley Realty Corp., 15 A.D.2d 138, 221 N.Y.S.2d 684; 15 Am.Jur., Damages, § 21, p. 412; Restatement, Contracts, § 331). Upon the retrial plaintiffs should present their evidence in this respect with more definiteness and certainty than is contained in the record before us.

The more difficult question is whether exemplary or punitive damages may be awarded in these actions for wrongful expulsion. Relying upon Dunkel v. McDonald, 272 App.Div. 267, 70 N.Y.S.2d 653, the trial court held that it had no power as a matter of law to award that relief because the action was one 'in equity' and not in law. The amended complaints all seek broad and diverse relief, among other things praying 'for any lost earnings or other damages the court may find plaintiff has sustained as a result of the wrongful conduct of the defendants'. This invokes the broadest, not the strictest powers of the court. All relief should be granted that is appropriate (See Farr v. Newman, 18 A.D.2d 54, 238 N.Y.S.2d 204 [4th Dept., decided Feb. 28, 1963] and cases cited therein). Moreover, the court which decided the Dunkel case has recognized that we are no longer bound by the technical and archaic distinctions between law and equity and has disavowed the principle there asserted. As Justice Breitel said in I.H.P. Corp. v. 210 Cent. Park South Corp., 16 A.D.2d 461, at page 465, 228 N.Y.S.2d 883, at page 888: '* * * the rule which forbids combination of equitable relief with an award of punitive damages is founded upon an obsolete procedural division with no rational basis, apart from history, in modern substantive law or equity.'. In affirming this decision on March 28, 1963 (12 N.Y.2d 329, 334, 239 N.Y.S.2d 547, 550, 189 N.E.2d 812, 814) the Court of Appeals has removed any doubt as to the power of a court of equity to award punitive damages.

The focus of our inquiry then, is not whether the court, sitting in equity, has the power to award exemplary or punitive damages, but whether it may do so under this complaint for damages arising from wrongful expulsion. In other words, proper determination of this question involves application of the purpose of such damages to the nature and facts of the action at bar. Various formulae have been used by our courts in suggesting appropriate reasons for imposing as a punitive sanction damages beyond those normally compensatory. The classic statement contained in Voltz v. Blackmar, 64 N.Y. 440 is as pertinent today as when it was written in 1876. There the court said at page 444:

'In vindictive actions, as they are sometimes termed, such as libel, assault and battery and false imprisonment, the conduct and motive of the defendant is open to inquiry, with a view to the assessment of damages; and if the defendant, in committing the wrong complained of, acted recklessly or willfully and maliciously, with a design to oppress and injure the plaintiff, the jury, in fixing the damages, may disregard the rule of compensation, and beyond that may, as a punishment to the defendant and as a protection to society against a violation of personal rights and social order, award such additional damages as in their discretion they may deem proper. The same rule has been held to apply in the case of a willful injury to property, and in actions of tort founded upon negligence, amounting to misconduct and recklessness.'

Recently the Court of Appeals considered the applicability of punitive damages to an action grounded upon fraud and deceit (Walker v. Sheldon, 10 N.Y.2d 401, 223 N.Y.S.2d 488, 179 N.E.2d 497). As the dissenting opinion noted, no case had as yet done that. The majority distinguished between the 'ordinary' fraud and deceit case and one where the fraud was aimed at the public generally and was gross, involving 'high moral culpability'. Judge Fuld wrote at page 404, 223 N.Y.S.2d at page 490, 179 N.E.2d at page 498: 'Moreover, the possibility of an award of such damages may not infrequently induce the victim, otherwise unwilling to proceed because of the attendant trouble and expense, to take action against the wrongdoer.'

Strong reasons of policy promote the use of exemplary damages to deter union officials from conduct designed to suppress the rights of members to a fair and democratic hearing on legitimate disciplinary charges. The very basis for the existence of unionism in our society today is the promise of employment to those who desire to associate freely in order to obtain it. The right of the working man to the benefits of collective bargaining is too essential and valuable to be hindered, impeded and seriously damaged by irresponsible and dictatorial leaders whose dominance in any given situation does great disservice to the purpose and principles of unionism. When that right of free association is usurped by a concerted, malicious effort to deprive the individual of the safeguards built into the association, it cannot be condoned. To do so without providing a sufficiently full remedy to the individual maligned would be to permit unfettered domination by the strong 'boss', equally obnoxious be he employer or union official. Too often members are reluctant to enforce the obligations owed to them under their constitutions because of their lack of funds, possibility of recrimination, lack of education and the like. (See generally, Summers, 'The Law of Union Discipline: What the Courts Do in Fact', supra, at pp. 214-224.) Imposition of exemplary damages, when the requisite elements of malice, gross fraud, wanton or wicked conduct, violence or oppression are present, serves to achieve the deterrence they were designed to effect. The circumstances from which this may arise could be as many as the formulae used to express them. All, of course, would need to contain evidence of violence or oppression or malice, gross fraud or wanton and wicked conduct. (See 1 Clark, New York Law of Damages, § 51, pp. 93-96; Trimble v. New York Life Ins. Co., 234 App.Div. 427, 255 N.Y.S. 292; Douglas v. Tomkins Realty Corp., 28 Misc.2d 192, 194, 210 N.Y.S.2d 550, 552-553; Walker v. Sheldon, 10 N.Y.2d 401, 223 N.Y.S.2d 488, 179 N.E.2d 497, supra; Voltz v. Blackmar, 64 N.Y. 440, supra; Toomey v. Farley, 2 N.Y.2d 71, 83, 156 N.Y.S.2d 840, 848-849, 138 N.E.2d 221, 227-228; Krug v. Pitass, 162 N.Y. 154, 56 N.E. 526.)

Courts in other jurisdictions have awarded exemplary damages for wrongful expulsion or suspension. (See Manning v. Kennedy, 320 Ill.App. 11, 49...