Local 204 of Textile Workers Union of America v. Richardson

• Decision Date: 07 October 1943
• Docket Number: 7 Div. 713.
• Citation: 245 Ala. 37,15 So.2d 578
• Court: Alabama Supreme Court
• Parties: LOCAL 204 OF TEXTILE WORKERS UNION OF AMERICA et al. v. RICHARDSON.

15 So.2d 578

245 Ala. 37

LOCAL 204 OF TEXTILE WORKERS UNION OF AMERICA et al. v. RICHARDSON.

7 Div. 713.

Supreme Court of Alabama

October 7, 1943

Rehearing Denied Dec. 2, 1943.

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

On submission, appellee moved to dismiss the appeal on the ground that same was not taken within the time allowed by law. The record proper shows that the original judgment was rendered May 22, 1941; that on June 20, 1941, defendants filed a motion for a new trial; that after successive continuances the trial court on October 29, 1941, granted the motion for new trial as of November 8, 1941, unless the plaintiff should sooner enter a remittitur of damages in the amount stated; and that on October 31, 1941, a remittitur having been filed by the plaintiff, the motion for new trial was overruled, to which action the defendants noted an exception. It further appears that the bill of exceptions contains no reference to the motion for new trial or the ruling thereon. The appeal was perfected November 25 1941.

THOMAS BROWN, and FOSTER, JJ., dissenting in part.

Isadore Katz, of New York City, and Ling &amp Bains, of Bessemer, for appellants.

Horace C. Wilkinson, of Birmingham, and Chas. F. Douglass, of Anniston, for appellee.

BOULDIN Justice.

If a motion for new trial has been duly filed, considered and overruled, the time limited for taking an appeal from the original judgment dates from the judgment overruling the motion for new trial; and this regardless of whether the fact of a motion for new trial and ruling thereon appear in the bill of exceptions so as to warrant a review of the ruling on the motion under Tit. 7, § 764 of the Code. Richards v. Williams, 231 Ala. 450, 165 So. 820; Emerson v. State, 241 Ala. 383, 4 So.2d 186.

What we have written sufficiently discloses the holding of the opinion in the Richards case, supra. As written, Headnote 1 to that case is in conflict with Headnotes 2 and 3, which correctly state the holding of the decision.

In general terms, the nature of the case is outlined in brief for appellee as follows:

"Mrs. Madge Richardson, appellee here and plaintiff in the court below brought an action against Local 204 of the Textile Workers Union of America, an unincorporated association, Miss Virginia Browning, now Mrs. Virginia Browning Holloway, Miss C. Stricklin and Mrs. Lillie Badgett to recover damages on account of the defendants wrongfully and maliciously causing plaintiff to be discharged.

"In general the plaintiff's claim was that she was employed by the Utica Knitting Mills in Anniston in August, 1939, and while working there the defendants wrongfully and maliciously notified plaintiff's employer that she was a member of said Local 204 and delinquent in the payment of dues to that organization. Plaintiff claimed that she was not a member of said organization and not indebted to it in any sum. Plaintiff further claimed that the defendants wrongfully and maliciously caused her employer to require her to pay said dues or discharge her, and that she refused to pay said dues and that her employer discharged her because she did not pay the dues she did not owe."

The trial court gave the affirmative charge on behalf of Miss Stricklin and Mrs. Badgett, and the jury returned a verdict against the remaining defendants, Local 204 and Mrs. Virginia Browning Holloway, for $25,000.

The cause went to the jury on Counts 2 and 3 of the Complaint, as amended, and plea of the general issue. Among the assignments of error here insisted upon is the overruling of the defendants' demurrer to Count 2. This Count, in pertinent part, reads: "* * * on, to wit: August 17, 1939, she (plaintiff) was, and had for a long time prior thereto, been in the employ of the Utica Knitting Company, a corporation, operating in Calhoun County, Alabama; that, on said date, the defendants, said Local 204, by its agents, and the others, acting for it at the time, and in the line and scope of their authority from it, wrongfully, also willfully or wantonly, caused her discharge from said employment on said date in that, through wrongful request of her employer, in substance that it require her, as a condition precedent to a continuation of her employment with it, to pay dues she did not owe to said Local 204, with proximate result that her employer did exact of her the payment of said dues, discharging her upon her refusal to pay them, * * *." (Italics supplied)

The 12th ground of demurrer thereto reads: "For that defendants are charged with wrongfully, also willfully or wantonly, causing the discharge of the plaintiff from her said employment, and the quo mode thereof, as is alleged, is not sufficient as a matter of law to constitute wrongful, also wilful or wanton, procurement of plaintiff's alleged discharge."

Construing pleadings most strongly against the pleader when challenged by apt demurrer, this Count was subject to the demurrer under the well-defined rule that when a wilful or wanton wrong is charged in general terms, and this is followed by quo modo, the facts set up in the quo modo must support the allegation of wilful or wanton wrong.

The words "in that" clearly import that what follows is the quo modo.

That a wrongful request is not the equivalent in law to a wanton or wilful act is obvious.

The Count so recognizes in alleging defendants wrongfully also wilfully or wantonly caused plaintiff's discharge, etc. A request for discharge of plaintiff for nonpayment of dues she did not owe would be wrongful, even though based on information believed to be true under most, if not all, circumstances. The demurrer should have been sustained. Blackmon v. Central of Georgia Ry. Co., 185 Ala. 635, 64 So. 592; Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; J. C. Byram & Co. v. Livingston, 225 Ala. 442, 143 So. 461; Wm. E. Harden, Inc., v. Harden, 29 Ala. App. 411, 197 So. 94.

Count 3 charged that defendants: " Wrongfully and maliciously caused the plaintiff to be discharged from her said employment by wrongfully, maliciously and falsely informing plaintiff's said employer that plaintiff was a member of Local 204 of the Textile Workers Union of America, which was false, and that she was delinquent in payment of dues to that organization which was false; and by wrongfully and maliciously demanding of plaintiff's employer that it require plaintiff to pay dues it was claimed she owed said Local 204 or be discharged * * *." (Emphasis supplied)

This Count is not subject to the same criticism as Count 2, nor to the objection that it alleges mere conclusions of the pleader. The complaint does not challenge the right of Local 204 to request or demand the discharge of employees, members of said Local who were delinquent in the payment of membership dues and refused to pay.

Count 3 bases the cause of action on wrongful, malicious and false representation touching plaintiff's membership in the Local, and a wrongful and malicious demand for her discharge upon her refusal to pay membership dues she did not owe, resulting in her discharge by her employer. The issue of malice, especially on the part of Miss Virginia Browning, the active officer of the union in presenting the evidence of membership and non-payment of dues upon which the employer acted, was a vital issue in the case presented by the pleadings and submitted to the jury by charge of the court. The verdict rendered was highly punitive, evidencing a finding of malice.

Evidence tended to show that plaintiff was reported to the employer as a member of the Local delinquent in the payment of membership dues; that the manager of the employer made this report known to plaintiff, who denied membership in the Local. This coming to Miss Browning, she presented to the manager a photostatic copy of a membership card, signed by plaintiff, reading:

"Textile Workers Organizing Committee of the Committee for Industrial Organization"

"Atlanta National Building, Atlanta, Georgia.

"June 16, 1938.

"I hereby accept membership in the Textile Workers Organizing Committee of the C. I. O., and of my own free will hereby authorize the Textile Workers Organizing Committee, its agents or representatives to act for me as a collective bargaining agency with the Utica Knitting Company, Anniston, Alabama, in all matters pertaining to rates of pay, wages, hours of employment or other conditions of employment, for a period of one year from above set out date. This authorization revokes any authorization I may have signed before this date.

"Signature Mrs. Madge Richardson

"Address 2004 Moore Avenue

"Witness:

"Ethel Hollingsworth

"Lucile McCrelles"

We note here that plaintiff, admitting the signature, denied any knowledge of its content, any assent to its terms, claimed it was procured by fraud and breach of confidence. Witnesses for defendant controverted these claims.

We are not here concerned with the weight of testimony on this or other issues of fact.

There is evidence that Miss Browning made no express request or demand for plaintiff's discharge upon her refusal to pay.

Section 7 of the contract between the employer and the bargaining agent (T.W.O. C. of the C.I.O.) entered into November 2 1938, stipulated: "Section 7. The Corporation recognizes the obligations of the...