Sweetman v. Barrows

• Decision Date: 16 April 1928
• Parties: SWEETMAN v. BARROWS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 349

161 N.E. 272

SWEETMAN

v.BARROWS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 16, 1928.

Report from Superior Court, Suffolk County; Richard W. Irwin, Judge.

Action of tort by John J. Sweetman against T. C. Barrows and others. The trial judge ordered a verdict for plaintiff set aside and ordered verdict for defendants. On report from the Superior Court. New trial ordered.J. J. Enright, of Boston, for plaintiff.

W. J. Day, of Boston, for defendants.

CARROLL, J.

The plaintiff was a member of a labor union of moving picture operators known as Local No. 182, a voluntary association. The defendants are officers and members of Local No. 182. It is alleged in the declaration that the local union ‘has jurisdiction in dispersing work to its members over practically eighty-five per centum of the moving picture theaters and moving picture exchanges of Boston, and within a geographical radius of ten miles from the State House, Boston’; that the plaintiff is a member in good standing in Local No. 182 and has paid all lawful dues, lawful assessments and taxes. The declaration further alleges that in February, 1923, Local No. 182 enacted a plan of insurance by which assessments were levied on the members; that the plaintiff brought a suit in equity to test the legality of the assessments wherein it was decided that the assessments were illegal, and a decree was entered restraining the defendants from collecting the assessment from the plaintiff; that in February, 1925, Local No. 182 at a regular meeting, acting through its officers, demanded that the plaintiff pay forthwith ‘such illegal assessments'; that the plaintiff refused and ‘was ousted without hearing and without notice from the said meeting,’ and, with the ‘assistance of a police officer * * * [he was] removed and barred * * * from attending and from seeking readmission at the said regular meeting’; that the plaintiff has been deprived of all rights as a member of Local No. 182, as a result of his refusal to comply with the illegal demand made upon him; that the defendants ‘acting in concert, moved by enmity and ill will, * * * engaged in an unlawful combination and conspiracy to injure the plaintiff * * * and * * * to prevent * * * [him] from earning his livelihood as a union motion picture operator’; that by reason of the conspiracy and the acts done in pursuance thereof, the plaintiff has been deprived of membership in Local No. 182, which carries with it ‘the right of the plaintiff to be placed and to secure work and labor, * * * so that the plaintiff cannot enter into contract of employment as a union picture operator.’ In the superior court there was a verdict for the plaintiff; and the case reported to this court.

The decree in the equity suit referred to was entered in January, 1925. The plaintiff testified: That in February of that year he attended a regular meeting of Local No. 182, and there were present fifty to fifty-five of the defendants (we understand that the total membership in the local was 143, all the members being defendants in the action). That after the sergeant at arms reported that the plaintiff had no card, the president asked him, ‘Are you ready to pay your dues and assessments?’ to which the plaintiff replied ‘that * * * [he] wasn't prepared to pay. * * * [He] didn't come up that night prepared to pay dues and assessments.’ That previous to this the financial secretary spoke to him about dues and assessments, and reported to the president. The plaintiff further testified that he had offered frequently to pay his dues and ‘they would not accept them without * * * [he paid] the illegal assessment’; that he offered to pay his dues in July, 1923, and the offer was refused by the financial secretary, who informed him that the dues would not be accepted unless he paid the insurance assessment; that he later offered to pay his dues; that at the meeting of February 3, 1925, the president ordered the sergeant at arms to eject him and the president directed the sergeant at arms and the custodian of the hall to ‘get a police officer to come in and put * * * [him] out’; that the police officer asked him to ‘come outside a minute * * * so * * * [he] went outside with him’; that he then made an attempt to return to the meeting but ‘could not get in’; that just before he was ejected Frank McCullom, one of the members present, said to him, ‘Don't go out for anybody;’ ‘that outside of what McCullom said no other member’ objected, and ‘every member present was in a position to hear and see everything that transpired’; that in March, 1925, he again attempted to attend a regular meeting of the union; that ‘somebody opened the door about so far (indicating about two feet)’ and closed the door in his face. He also testified that at the February meeting when requested by the president to leave the hall, he said that if the members voted for him to retire he would walk out peaceably, to which the president said, ‘there isn't any vote of the body necessary; you got to go out.’

The plaintiff further testified as follows: A motion picture operator secures his work from the business agent of Local No. 182. When an operator is out of work he gives his name to the business agent, who ‘distributes it among the members that are sitting in the extra list * * * pro rata * * * supposed to give each member * * * an equal share.’ In answer to a question as to the effect of the suit in equity on his obtaining employment, he testified:

‘It has affected my employment greatly in every way. It has affected it so that I could not go into any union house and get a position as a union motion picture operator.’

He was able to secure but little employment. From October, 1923, to February, 1925, he was present every day at the office of the business agent of the union and had seen ‘the business agent, Mr. Burke, give out work,’ ‘send them out on positions, but he (Burke) did not send me * * * out.’ He was deprived of the right of a membership card in July, 1923. These cards were issued by Arthur Moulton, the financial secretary, and by Mr. Fox, and he was told by Fox that the president had instructed him to accept no dues from the plaintiff until he paid the insurance assessments. He received no card after July, 1923. On several occasions he applied for a membership card and offered to pay his dues. Before the equity suit was begun, the members of the union were on friendly terms with him. After this, with the exception of twelve or fifteen members who were friendly, ‘I have been an outcast.’ On one occasion Jacob Abramovitz, a member of the union, said to him: ‘We will get you.’ The plaintiff further testified that on many occasions between November[263 Mass. 353]1, 1923, and February 8, 1925, he spoke to Burke, the business agent, and asked for employment, and Burke told him that when he paid his insurance assessments he would get work and not before.

On cross-examination the plaintiff testified that he appeared before the executive board; that Barrows, Moulton, Gray, Heath, Nozzolo, and Bixgorme were present at this meeting and ‘the executive board said * * * [he] would have to pay the insurance and that was all there was to it.’

In answer to interrogatories introduced in evidence the plaintiff said that all the members of the executive board were present at the meeting February 3, 1925, and ‘with the sanction and the approval of the members present participated in calling, and giving directions to the sergeant at arms at said meeting, to have me ejected’; that they all agreed to it.

James F. Burke, the business agent of the union, called as a witness by the plaintiff,...