On motion for summary judgment.
This proceeding comes before the court on motion by two of the defendants for a summary judgment in their favor against both plaintiffs. In support of the motion depositions of the plaintiffs were taken and affidavits were filed. Answering affidavits in resistance to the motion were submitted on behalf of the plaintiff, and though some divergence in their factual content appears, the determination herein made rests entirely upon a state of facts which admits of no dispute.
The plaintiffs Frank R. DiMaio and Josephine DiMaio, his wife, filed complaints against the United Packinghouse Workers of America, C.I.O., hereinafter called the International, and Local 80-A United Packinghouse Workers of America, C.I.O., hereinafter called the Local, as well as against the officers of the Local as individuals who, however, are not noticed on this motion.
The complaint alleges that Frank DiMaio and his wife were members of the Local which represents the employees of the Campbell Soup Company where both presently and for some time past have worked. In fact, Frank DiMaio was an active participant in the movement that accomplished the organization of the plant and its subsequent affiliation with the several International organizations to which, during its existence, the Local has belonged. An incident of membership in the Local is, by constitutional provision, membership in the International. During one period the plaintiff, Frank DiMaio, was an officer of the Local serving variously as shop steward, trustee and treasurer. In 1952, after DiMaio's tenure as treasurer, he appeared as a witness in the prosecution of Anthony Valentino and Sylvia Neff in which it was charged that these latter two had falsely testified with respect to their membership in the Communist
Party. Valentino was then the business manager of the Local and was assisted by Sylvia Neff in the preparation and publication of a pamphlet captioned "The Bulletin." The responsibility for all of the phases of editing, printing or mimeographing and distributing "The Bulletin" was entrusted to them. In the issues of June 5, 12 and 18, 1952, of July 30, 1952, of October 16, 1952 and December 11, 1952, there were references to Frank DiMaio in words such as "stool pigeon," "rats of the lowest form," "company stooges," "even if the 'stool pigeons' succeed in convincing the jury with lies that Valentino is guilty, etc.," "a group of renegades within our own rank," and other expressions of similar import. The plaintiffs allege that these verbal references, together with accompanying drawings, injured them and their good names and proceeded from the willful and malicious intention of the defendant to defame them. As a result they have been brought into public disgrace, have been held up to public ridicule and contempt, and have been caused great mental anguish and suffering, for which they demand punitive and compensatory damages.
The principal basis upon which the defendants rest their contention on this motion is supplied by the case of Marchitto v. Central Railroad Company of New Jersey , 9 N.J. 456 (1952), where it was held that plaintiff could not sue the defendant Brotherhood which was an unincorporated association and of which he was then a member. The substantive claim made by the plaintiff in that case against the Brotherhood was that, though it had undertaken the prosecution of a claim for wages due him, it had willfully neglected and failed to do so diligently and properly, thereby breaching its duty of trust to him and jeopardizing his claim against the railroad. After observing that the statutory treatment of unincorporated associations effected no change in the substantive nature of the rights and obligations recognized at common law, the court held that:
"As a member of the group the plaintiff is jointly responsible with all other members for the actions of the group itself, and
accordingly as a principal he has no cause of action against his co-principals for the wrongful conduct of their common agent."
In reaching this conclusion the court, citing McClees v. Grand International Brotherhood , 59 Ohio App. 477, 18 N.E. 2 d 812 (Ct. App. 1938), said:
"The facts of that case so closely resemble those in the instant case that the decision of the Ohio court is of particular interest and we therefore ...