Miazga v. International Union of Operating Engineers, AFL-CIO, Local 18
| Decision Date | 14 February 1964 |
| Docket Number | LOCAL,AFL-CI |
| Citation | 2 Ohio App.2d 153,196 N.E.2d 324 |
| Parties | , 94 Ohio Law Abs. 5, 29 O.O.2d 297 Frank P. MIAZGA, Plaintiff Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS,18, etc., et al., Defendants Appellees. |
| Court | Ohio Court of Appeals |
Rudd, Ober & Miller, Charles R. Miller, Charles J. Donohue, Cleveland, for plaintiff appellant.
Clyne, Moran & Perelman, Cleveland, for defendants appellees.
This appeal comes to this court on questions of law from a judgment entered for the defendants, The International Union of Operating Engineers, AFL-CIO, Local 18, 18-A, 18-B, 18-C, and the officers of the various unions and district representatives as named in the petition in the several capacities as therein set out but not as individuals. The plaintiff failed to plead further as to these defendants after a demurrer to the amended petition had been sustained on the ground, that as to the said defendants the petition did not state a cause of action. The case remains pending as to each of said persons named as indivduals.
The allegations of the amended petition are that the plaintiff is a member of the defendant union which is an unincorporated association of persons organized to act for the benefit of its members; that the defendant union and the individual defendants acting individually and as officers, representatives and employees of the defendant union, individually and jointly, wickedly and maliciously published of and concerning this plaintiff and others named in a report to the members of Locals 18, 18-A, 18-B, 18-C and its branches of the International Union of Operating Engineers, which included therein a false and defamatory charge that read:
'You will recall that early in June, on the 7th and 8th, the state meetings were held in Columbus. At that time we were very fortunate in having our great General President Joe Delaney with us. For a time, however, it appeared that he might not be with us because inquiries were made from this rebel group concerning how Brother Delaney would come from Washington, D. C., and after these inquiries were made it was learned that there was a plan to meet his airplane and use a sawed off shotgun on him and Brother Hunter Wharton, the General Secretary-Treasurer of The International Union. Forearmed with this information, the Columbus Ohio Police Department was notified and when Brother Delaney's airplane landed it was taken to a special gate at the airport and he got off of the airplane under a police guard. He was immediately put into an automobile and taken from the airport without delay.
'This incident occurred on June 6, 1958. On June 7, 1958, the Executive Board of Local 18 at its state meeting in Columbus, passed the following resolution, as the minutes of that meeting disclosed:
"A resolution was offered by Brother Rutherford and unanimously adopted, after motion duly made and seconded, reprimanding and censoring the members of District 1 who had been creating dissension and bringing disgrace upon the order.'
'The resolution read as follows:
'* * *
'Now, therefore, be it resolved that Local Union 18 of the International Union of Operating Engineers officially reprimand and censor the following named persons, members of District 1, for their participation in the movement (a) to overthrow the duly constituted government of Local Union 18 by the use of force and violence; * * * (f) to commit physical assault upon those who are members of our organization;
'* * *
'Norman Anderson, William Apley, Andrew Bugel, Jack Campbell, Andrew Conway, Anthony Conway, Clarence Ehrley, Edward J. Gallagher, Peter Gallagher, Ray Gallagher, William Gallagher, James P. Jones, James Mackin, Ray Mackin, Frank Miazga, Michael Rosul, Cail Wallett, Orville Williams, Melvin Jackfert, Campbell Blair, Frank Keating, Peter Banker, Tony Poelking, Steve Krall, Charles Cahlick.'
that the foregoing false accusations were so prepared, printed and published of the plaintiff, well-known to be a member of the rebel group, as to mean, say and indicate to all readers and listeners and was intended to be understood by all to whom said report was read and circulated that the plaintiff participated in a criminal conspiracy to commit a felony on June 8th, 1958, by physically assaulting the president and secretary-treasurer of the international union with a sawed off shotgun. It is alleged that the accusations were false and published to cast hatred, contempt and scorn upon the plaintiff and to imply, for these and other reasons set out, that he was unfit for the position of honor and responsibility, that is, that of a member and citizen.
The petition contains seven separate causes of action based on the said report in causing it to be read before the membership in certain districts and causing it to be published and mailed to a large number of union members of the defendant local union in Ohio. After pleading that serious and irreparable harm was suffered by plaintiff because of said libelous publications, plaintiff seeks both compensatory and punitive damages on each of the several causes of action.
The primary claims on which the demurrer is based are that the alleged accusations are not libelous per se and that special damages have not been alleged; second, that the alleged defamatory words to not refer to the plaintiff; and third, the unions should be dismissed because a member of an unincorporated association is without legal standing to sue his association to recover damages for a tort it inflicted upon him.
It must be concluded that the trial court by sustaining the demurrer as to the defendant unions and their officers acting in the capacities pleaded overruled the defendant's first and second grounds for the demurrer and these questions, therefore, are not before us. We are here concerned with the third claim set out in the demurrer, that is, that the petition does not state a cause of action for the legal reason that a member of a voluntary association of persons cannot seek damages resulting from a tort committed by such unincorporated voluntary association. The claimed theory of law is that a member of an unincorporated association of persons cannot seek damages in an action sounding in tort against such association or its officers since by his membership he is one of the principals in the association and engaged with all the other members in a joint enterprise; that in bringing such action he is in effect bringing an action against himself. This was the holding of cases in this state decided prior to 1955. See: Koogler v. Koogler, 127 Ohio St. 57, 186 N.E. 725; McCann v. Local Union No. 476, 28 Ohio Law Abst. 385; McClees v. Grand International Brotherhodd of Locomotive Engineers, 59 Ohio App. 477, 18 N.E.2d 812; ONeil v. Sea Bee Club, Ohio App., 118 N.E.2d 175.
At the time these cases were decided, Section 10060 was a part of Chapter IV of the General Code dealing with religious and benevolent associations.
The section then read:
'Such an association or society may sue or be sued, answer or be answered unto, plead or be impleaded in any court in this state.'
In adopting the Revised Code in 1953, the legislature combined the substance of Section 10060, General Code, with former Sections 10057, 10058, 10059 and 10061, General Code, all of which then became Revised Code Section 1715.42. This section as it now appears in Chapter 1715 of the Revised Code is headed 'Religious and Benevolent Organizations.' It is abundantly clear, therefore, that when such Revised Code section provided (in which the wording was changed), '* * * [s]uch an association or society may sue or be sued in any court in this state,' labor unions were not intended to be included. The adoption of a new chapter (R.C. 1745) in 1955, headed 'Unincorporated Associations' however, for reasons hereafter set out, did by its provisions include all unincorporated associations including unincorporated labor unions. Section 1745.01 to 1745.04, inclusive, of the Revised Code, provide:
' § 1745.01. Unincorporated association may contract, sue, or be sued.
'Any unincorporated association may contract or sue in behelf of those who who are members and, in its own behalf, be sued as an entity under the name by which it is commonly known and called.'
' § 1745.02. Assets subject to judgments, execution and other processes.
' § 1745.03. Service of summons upon unincorporated association.
' § 1745.04. Action not affected by change in officers or membership.
'No cause of action by or against any such unincorporated association shall abate by reason of the death, removal, or resignation of any officer, or by the death or legal incapacity of any member, or by reason of any change in membership of the association during the pendency of the cause.'
These provisions clearly set out a substantive procedural rule of law whereby an...
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