Campbell v. Johnson

GILBERT, Circuit Judge (after stating the facts as above). The plaintiffs in error contend that the Circuit Court was without jurisdiction of the action, for the' reason that it was not alleged in the amended complaint that the defendants therein were residents of the Western district of Washington, and because the amended complaint filed on April 6, 1907, alleged the citizenship of the parties in the present tense, and did not allege their citizenship at the time of the commencement of the action; citing Laskey et al. v. Newtown Mining Co. (C. C.) 56 Fed. 628 . The objection that the complaint omits to allege the place of residence of the defendants, or that they are sued in.a district other than that of their residence, is one that may be waived by them, and they are held to waive it when they make a general appearance and in a demurrer to the complaint join such objection with the objection that the complaint does not state facts sufficient to constitute a cause of action. St. Louis, etc., Railway v. McBride, 141 U. S. 127 , 11 Sup. Ct. 982, 35 L. Ed. 659 ; In re Moore, 209 U. S. 490 , 28 Sup. Ct. 585, 706, 52 L. Ed. 904 ; Western Loan Co. v. Butte & Boston Min. Co., 210 U. S. 368 , 28 Sup. Ct. 720, 52 L. Ed. 1101 . In answer to the other jurisdictional objection, it is sufficient to say that the original complaint alleged citizenship of the parties at the time of the commencement of the action. By that complaint and the service of process thereunder the Circuit Court acquired jurisdiction. By the repetition of the averments of citizenship in the present tense in the amended complaint the court did not lose jurisdiction. The amended pleading will be deemed to speak as of the time of. the commencement of the action. Toledo Traction Co. v. Cameron, 137 Fed. 48 , 69 C. C. A. 28 ; Mexican Ry. Co. v. Pinkney, 149 U. S. 195 , 13 Sup. Ct. 859, 37 L. Ed. 699 . In the case of Laskey et al. v. Newtown Min. Co., supra, a demurrer to the original complaint had been sustained for want of proper jurisdictional averments. Therein it differs from the case at bar. Error is assigned to the ruling of the court in sustaining the demurrer to the affirmative defense alleged in the answer. The substance of that defense was that the rules of Union 202 provided for the suspension of a member who has been declared guilty of contempt by a two-thirds vote of the union, and for an appeal from such decision; that, in fact, the defendant in error was so suspended for a period of 30 days by the vote of the union; -and that, if injustice was done him thereby, he had a remedy by appeal. But the gist of the cause of action alleged in the complaint is that the plaintiffs in error wrong *105 fully aud unlawfully entered into a conspiracy to suspend unlawfully the defendant in error from the union, and to prevent him from following his usual occupation, and that the conspiracy was carried out. It may be assumed that in all associations of a similar character provision is made for the suspension or dismissal of members. The fact that the members had that power, and that provision was made for appeal, does not affect the question of their liability in case of a conspiracy such as was alleged in the complaint. In charging the jury the court expressed the opinion that the motion for a nonsuit would have been granted-if the evidence had been clear that the position of the defendant in error would have been retained for him after the period of suspension, but decided to submit to the jury on the evidence the question whether the suspension necessarily deprived him of his position by bringing about a permanent discharge. The members of the union undoubtedly had the right to suspend the defendant iti error, but that is not to say that they had the right to conspire together to suspend him unlawfully. It is earnestly contended that the trial court erred in denyiug the motion of the plaintiffs in error at the close of the evidence for a directed verdict in their favor on the ground that the evidence was not sufficient to show a cause of action against them. We are unable to sustain this contention. There was evidence of strong personal feeling against the defendant in error on the part of many members of the union. He had twice before been fined by the union on account of alleged breaches of its rules, and on each occasion he had appealed to the International Typographical Union, and his appeal had been sustained. At one of the meetings one of the plaintiffs in error had 1. ted that he was after the defendant in error’s scalp, and he was roundly applauded. Other members had said: “We will get him yet,” “We will have his card,” and made other expressions of their ill will toward him. There was evidence that his refusal to testify before the committee, for which he was charged with contempt, was not contempt, and that, according to the rales of the union, he could not he required to testify against himself. It is not denied that he was furnished no copy of the charges on which he was finally suspended, and that he had no notice to appear and was not present at the meeting at whi.h he was suspended. There was evidence that the officers of fhe union refused to allow him an appeal, and refused to show him 1he record on which he had been suspended, and that he was compelled to take his appeal by telegraphing his own affidavit to the president of the International Typographical Union. It sufficiently appears, also, that he was discharged from his position on account of his troubles with the union and Ills suspension therefrom, aud the hostile attitude of the members of the union. There are numerous assignments of error to the rulings of the court in admitting and excluding evidence. We find no error in any of them. It is contended that the court erred in charging the jury as follows: ’ - i Is not required for the plaintiff to prove in this ease a criminal conspiracy. The only kind of conspiracy that has to he proved is that there was *106 a common purpose and a concert of action with the plain, intent in the minds of the different persons to cause the suspension of the plaintiff from membership in the union. If that purpose existed and was successful in causing his suspension, and the members who were participants in that knew that the necessary consequence of the suspension would be the loss of his position, then the jury have a right to .find from these conditions that their purpose was to injure him,” etc. It is urged against this instruction that the court thereby took away from the jury the consideration of all question of malice or ill will on the part of the plaintiffs in error. But elsewhere the court gave the •jury an instruction which is to be read in connection with the instruction above quoted. The court said: “And the decision of the case turns upon the question'of whether the defendants did anything from malice and ill will, and by a concert of action, with a common purpose to do an injury, or whether they, as members of an association, acting in good faith and without malice and without ill will, acted in accordance with their best judgment to promote the interests of the association.” We find no error for which the judgment should be reversed. It is accordingly affirmed.