Manning v. Kennedy

• Decision Date: 21 June 1943
• Docket Number: Gen. No. 42309.
• Citation: 49 N.E.2d 658,320 Ill.App. 11
• Parties: MANNING v. KENNEDY ET AL.
• Court: United States Appellate Court of Illinois

320 Ill.App. 11

49 N.E.2d 658

MANNING

v.KENNEDY ET AL.

Gen. No. 42309.

Appellate Court of Illinois, First District, First Division.

June 21, 1943.

Appeal from Superior Court, Cook County; Paul McWilliams, Judge.

Action by Dan Manning against James Kennedy and others for malicious conspiracy to injure plaintiff by causing him to be discharged from his employment. From a judgment for plaintiff, defendants appeal.

Affirmed. David A. Riskind and Abraham W. Brussell, both of Chicago (Abraham W. Brussell, of Chicago, of counsel), for appellants.

Maurice J. Walsh and Geoffrey Fleming, both of Chicago, for appellee.

McSURELY, Justice.

Plaintiff brought suit alleging that defendants had maliciously conspired to injure plaintiff by causing him to be discharged from his employment.

The complaint alleged that prior to July 5, 1938, plaintiff was a milk wagon driver and route salesman and member in good standing of the Milk Wagon Drivers' Union, Local 753, of the International Brotherhood of Teamsters of the American Federation of Labor; that Local 753 had contracts with most of the milk dealers in Chicago, including the Borden Company, by which plaintiff was employed which provided that no person could be employed as milk wagon driver and route salesman who was not a member of the union; that the defendants maliciously caused plaintiff to be discharged from his employment and to lose his membership in the union; that by reason of the conspiracy and loss of plaintiff's membership in the union plaintiff was discharged by the Borden Company and has ever since, by reason of the acts of the defendants, been unable to procure employment. Plaintiff asked for judgment against the defendants of $25,000.

The case went to trial before a jury, which returned a verdict finding defendants guilty and assessing plaintiff's damages at $15,000. Subsequently, upon defendants' motion for a new trial, which was denied, plaintiff remitted $7,500 from the amount of the verdict, and judgment of $7,500 was entered against the defendants, from which they appeal.

Plaintiff says the evidence shows he was a member of the Milk Wagon Drivers' Union, Local 753, for about 24 years; that he paid all his dues and in July, 1938, was not delinquent in the payment of any special assessment and had not violated any rule or by-law of the union. The by-laws of the union (section 13) provide that “All assessments and fines shall be charged as dues and must be paid within thirty days after the levying of said fine or assessment but the Executive Board may further extend the time if considered advisable.” Manning was called home on May 21, 1938, due to the illness of his mother-in-law, who died May 24; plaintiff remained at home for two weeks due to this illness and death; upon his return to work he was asked to pay union dues of $1.50 a week for the two weeks he was away and received no pay; he claimed that he was not required to pay for the time he did not work and was not paid, and asked a Mr. Acree, an employee of Borden Company, to obtain a ruling as to whether plaintiff was required to pay this assessment. Acree collected the dues and assessments from the members. Acree apparently never obtained a ruling on the point made by Manning, or at least never informed Manning that he had obtained a ruling from the officials of the union.

On the morning of July 6 plaintiff brought with him a check for $10 payable to the order of the union, as he had agreed to do the day before, and offered it to defendant Richards, and then to Kennedy, in payment of his dues in controversy. They refused to receive the check, although it was more than sufficient to pay all assessments levied on Manning, including the two weeks he was away and not working.

[1] Defendants argue that it was shown that plaintiff urged other members not to pay similar assessments and to disobey the union officials with reference thereto. Defendants introduced in support of this claim a witness named Sinkay, who testified that he heard Manning curse Kennedy and use abusive language toward him, urging the other employes to pay no attention to Kennedy. There were various matters which would lessen the credibility of Sinkay's testimony. Sinkay admitted that he did not know Manning. At the time of this alleged conversation Manning had the check with him to pay the assessments and would hardly curse Kennedy as Sinkay says he did, especially when Kennedy is a very large man, 6 feet tall, while Manning is a small man. The same criticism can be made of defendants' witness Swammie. He testified that when he arrived at the barn on July 6, Kennedy was asking Manning if he wanted to pay his assessments; that Manning refused, abusing Kennedy and telling the other men not to go back to work. All this happened while Manning had the check with him with which to pay the assessment. There were other witnesses present at the time and they did not testify that they heard Manning abuse Kennedy and tell the men not to pay their assessments and to pay no attention to Kennedy. In any event, the testimony of these witnesses presented a question of fact, and the jury, hearing and seeing them, evidently did not consider them credible.

The union by-laws provide as follows:

“Sec. 33. The Executive Board shall try all members whom charges have been preferred against, and report their findings at the next regular meeting of the Union.

“The Executive Board should attend all meetings of the Teamsters' Joint Council.

“Sec. 43. Every member of this union shall be entitled to a fair and impartial trial by the Executive Board for all offenses involving fines, suspensions or expulsion. If fined by the Business Representative, he may appeal his case to the Executive Board.

“Sec. 44. No member shall be placed on trial unless charges are preferred duly specifying the grievance and submitted to the Executive Board in writing and signed by two or more members. When this is done, the Secretary-Treasurer shall so notify the accused and the witnesses to appear before the Executive Board of the union, allowing reasonable time for the accused to prepare his defense. Should the accused not appear for trial on the date specified in such notice he shall be fined, suspended or expelled as the Board may direct.”

These by-laws provide that no union member shall be placed on trial unless charges are preferred against him, specifying the grievance and submitted to the Board in writing, signed by two or more members. The Executive Board shall then try all members against whom such charges have been made and report their findings at the next regular meeting of the union. All the Board had the power to do was to hear the evidence and report its findings.

It was proved beyond a doubt that the Executive Board did not observe these by-laws. It did not act on any written charge nor report its findings to the union. There was hardly the semblance of a trial. Kennedy made a verbal statement in which he charged Manning with conduct harmful to the union; in trying to persuade members to drop out of the union. Steve Sumner, a long-time member of the Executive Board and evidently a man in whom the members had confidence, attended...