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O''Brien v. Dade Bros. Inc.

Decided: May 23, 1955.


On appeal from a judgment of the Superior Court, Appellate Division, where the following opinion was filed.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None.

Per Curiam

"Plaintiffs here, 43 in number, sued their employer, Dade Bros., Inc., and certain of its employees, and the Marine Warehousemen's Local No. 1478 and certain officers of the union, to recover compensatory and punitive damages which they claimed to have suffered because of a tortious and malicious interference with their right to work. The jury awarded each of them compensatory damages representing the actual loss of wages suffered and also punitive damages in the amount of $200. The awards were against Dade Bros., Inc., and the local; no verdict was returned against the individual employees and officers of the employer and the union. Although the issue of the liability of the individuals was submitted to the jury for determination along with that of Dade Bros. and the union, the jury was silent as to them. An appeal by Dade Bros. followed.

"When the matter was first presented to us we noted in the appendix that although no verdict had been rendered against the individuals, a judgment of no cause of action as to them had been entered against the plaintiffs. It was impossible to determine from the record whether such a judgment had been entered at the direction of the trial court or whether a clerical error had been made in recording the verdict. Consequently, the cause was remanded so that a motion could be made to correct the record. Such a motion was made, as the result of which an amendment was entered striking out the judgment of no cause of action in favor of the individual defendants and setting forth the true fact that the verdict was silent as to them. The matter has now been returned to us for decision on the merits of the appeal.

"The first point argued is that the verdict was contrary to the weight of the evidence. A motion for a new trial on that ground was presented to the trial court and denied, and the rules tell us that we should not alter that result unless, after having given due regard to the opportunity of the trial court and the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion. R.R. 1:5-3(a).

"The record discloses that plaintiffs were warehousemen in the employ of Dade Bros., Inc. at the Claremont Terminal, a waterfront pier in Jersey City. They were members of the defendant labor union, which had a collective bargaining contract with the employer. Under that contract the employees had certain seniority rights.

"Apparently the men were employed on a day to day basis. They would assemble or 'shape up' on the pier each morning and an employee of Dade Bros., known as the hiring boss, would make individual selections among the men until the required number for the day was reached. The hiring boss was the defendant, Augustine De Acutis, also a member of the union and for part of the period involved president thereof. Originally he was engaged as a stevedore and later he became hiring boss, a position he held for about 18 months until the terminal closed on October 31, 1952.

"De Acutis was active in the union, which apparently was in the throes of internal dissension arising out of his conduct as hiring boss. The plaintiffs claimed that their seniority rights to employment under the contract were being ignored at the morning shape-ups by De Acutis with the consent and cooperation of the employer. Dade sought to take the position at the trial that De Acutis was designated hiring boss by the union and that it had no control over his activities. However, without detailing the evidence, a clear factual issue on this subject was presented for determination by the jury.

"In any event, on June 24, 1952, because of alleged indiscriminate hiring without regard to length of service and for other grievances connected with contract benefits, the aggrieved warehousemen struck. The strike lasted one day when, according to the plaintiffs, an oral agreement was reached to remedy the conditions and they returned to work.

"However, the next day at the shape-up the agreement was ignored and on June 26, 158 warehousemen struck and engaged in picketing until July 7. During this period plaintiffs asserted that the employer agreed with their committee to prepare and post a seniority list to be followed. Proof was introduced to demonstrate that this and other promises made were not fulfilled and that there continued to be a disregard of seniority. The result was that the men walked out again on July 24 and resumed picketing.

"Evidence was introduced to show that during the early part of this picketing the employer through its representatives, and particularly the vice-president in actual charge of the pier operation, stimulated and activated a situation between the non-strikers and the picketers which led to a serious commotion and near riot and which might have ended in a large-scale physical affray if it were not for the ...

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