Smith v. International Printing Pressmen & Assistants' Union of North America

190 S.W.2d 769, 1945 Tex. App. LEXIS 602

• Court: Court of Appeals of Texas
• Decided: September 28, 1945
• Docket: No. 13639.
• Status: Published

Opinions

LOONEY, Justice.

The appellant, L. R. Smith, sought damages, actual and exemplary, against the International Printing Pressman & Assistants1’ Union of North America, a voluntary labor union, appellee herein. The material facts upon which the suit is based, in substance are these: Appellant was a pressman, a member of appellee’s1 union and had been for over ten years prior to the events that culminated in the present litigation, having joined the union through ap-pellee’s subsidiary, Local No. 47, Fort Worth, Texas. During the time mentioned appellant was in good standing as a member and had served different publishing houses holding contracts with the union. It seems that about June 26, 1940, a member of the Executive Board of Local No. 47 verbally notified appellant that he had been charged with slandering the union and that a hearing would be had the following evening at S :30. This hearing was had in the absence of appellant and resulted in the Board making a report to Local No. 47 as follows: “June 27th, 1940. To: Members of Local No. 47: We, the members of the Executive Board, have found Brother L. R. Smith guilty of an unbecoming Union Member. The charges are as follows: On June 20th, 1940, Brother L. R. Smith goes to Business Manager of the Fort Worth Press and, in a slanderous way, makes charges to said Business Manager that is injurious to the Union. The Executive Board has found this to be true, and said Executive Board recommends that this Local No. 47 suspend Brother L. R. Smith for a period of thirty (30) days, beginning June 25th, 1940, and assesses a fine of $25.00 with this condition; that if Brother L. R. Smith should take a traveler out of Local No. 47, that the $25.00 shall be suspended until L. R. Smith’s traveler is again deposited in Local No. 47. Then said fine shall be collected at the time Brother L. R. Smith’s traveler is deposited.” (Signed Executive Board.)

Article 37 of the constitution and laws of appellee regulates trials in subordinate unions, such as the one under consideration. Among other things, it is provided in Sec. 4 of this article that the trial committee shall report to the subordinate union at its next regular meeting, which report shall contain a written synopsis of the testimony introduced at the trial, together with the verdict — whether “guilty” or “not guilty.” Then in section 5 it is provided that “Upon receiving the report of the trial committee (in the instant case signed by the Executive Board), the subordinate union shall vote on the question of sustaining the report of the committee as to the guilt or innocence of the accused, and, if found guilty, shall next vote on the punishment to be imposed. The vote shall be by ballot, and the first shall be on expulsion. If not in the affirmative, it shall be on the question of suspension; if decided in the negative, it shall be on the question of fine; if decided in the negative, it shall be on a reprimand.” Section 6 provides that “If, after voting on the different grades of punishment there has been no decision, the vote shall be taken over, commencing with suspension, and shall continue until a decision is arrived 'at.” Section 7 provides that “Two ballots cannot be taken on the question of expulsion. It shall require a two-thirds vote of those voting to expel the accused.”

The record discloses that after filing the report heretofore set out, no action whatsoever was ever had by Local No. 47, as required in subdivisions 5, 6 and 7 of article 37 of the constitution and laws of the order. Hence appellant was never found guilty of the offense charged and no punishment whatever was ever assessed against him, although thereafter he was treated as a fined and suspended member. At the time, appellant was working as a pressman for the Fort Worth Press which published several papers, and for whom he had worked a number of years; but immediately after the filing of this report with the Local, appellant was notified by the foreman of said Press (evidently a member of the union) that he (Smith) had been fined and could no longer hold his job; the manager of Fort Worth Press also notified appellant that he would not be permitted to stay on the job; that the manager did not have power to employ or discharge him, but, under the contract with the union, he would have to quit his job. This situation existed until August 15, 1940, when appellant tendered to the secretary of Local No. 47 all dues owing by him at the time and requested that there be issued to him a membership or union card; however, the secretary refused to comply with appellant’s request, unless in addition to the dues he would pay the fine imposed against him, that is, $25 — and 25 cents per day during the period of his suspension, which he refused to pay.

Since the occurence above mentioned, appellant, deprived of his standing in the union, the rights, benefits and privileges incidental thereto, has been able to obtain only non-union employment, or scrap jobs here and there, and at the time of the trial was serving a mercantile establishment in the City of Dallas as nightwatchman.

On September 11, 1943, appellant filed this suit, alleging in detail the facts outlined above, and prayed for damages both actual and exemplary. Appellee’s answer, in addition to special exceptions urged, contained (1) a general denial and special pleas; (2) alleged that, appellant, having failed to pay the union all dues since July 26, 1940, had forfeited his membership in the union; (3) alleged that if appellant sustained damages as claimed by him, it was due to his own fault, as he never paid the fine and penalties imposed upon him, and had not been reinstated as a member; and (4)- that the failure of appellant to obtain employment as alleged, was due to his personal habits (dissipation) which rendered him unemployable.

The jury, to which the case was submitted, found a verdict favorable to the appellant, as follows : (1) That he was given only a day’s notice of the hearing to be had by the' Executive Board; (2) that about August 15, 1940, the secretary of Local No. 47 refused to accept from appellant the dues owing to the union, which he offered to pay; (3) that appellant suffered pecuniary loss or damage as a direct and proximate result of being prevented by Local No. 47 from procuring employment as a pressman; (4) that his damages amounted to the sum of $8,460; (5) that appellee union, its agents and representatives, were prompted by malice in refusing to accept payment of dues offered by appellant, but (6) found nothing as exemplary damages ; (7) that appellant exercised reasonabe diligence between June 26, 1940 and May 10, 1944, to obtain employment; * * * (11) that Local No. 47, in regard to its dealing with appellant, did not act on instructions from the appellee; and (12) that the pecuniary loss sustained by appellant was neither directly nor proximately the result of excessive and continuous use of liquor.

Appellant moved for judgment on the verdict of the jury, after offering to remit $410 as excessive, and makes the same tender in this court. However, the court below ignored appellant’s motion and rendered judgment in favor of the appellee that appellant take nothing. It seems that the court based its judgment upon two propositions: (1) Because, in its opinion, appellant’s cause of action was ex delicto and not ex contractu in nature and, therefore, was barred by the two-year statute of limitation; and (2) because the court was of opinion there was no showing that Local No. 47 was the agent, servant, or representative of the appellee, as respects Local 47’s action towards appellant.

Appellant moved for a new trial and, same being denied, duly perfected this appeal. The questions hereafter discussed are properly before us.

If the court below was correct in its holding, that is, that appellant’s cause of action was barred by the two-year statute of limitation, or that agency was not shown, its judgment was correct and should be affirmed. On the other hand, if the court was incorrect in these holdings, its judgment was erroneous, should be reversed and the cause remanded to the trial court with instructions to enter judgment for appellant on the verdict of the jury.

The question of agency involved is one of law and not of fact, and results either from a contractual relationship or from the acts of the parties involved. 2 Tex.Jur. p. 651, § 228. In the instant case the existence of agency whether or not-of Local No. 47 for the appellee union, depends upon the contractual relation between the Local and the appellee. The constitution and laws of appellee are in evidence in their entirety; they constitute a book of considerable size which can neither be quoted nor discussed in detail. Section 3, however, of article I provides that “The jurisdiction of this International Union shall embrace the entire continent of North America, and in it alone is' vested the power to charter, regulate and control subordinate unions of printing pressmen, etc. * * * ” The book of laws contains numerous provisions for the regulation and control of its subordinate unions and their officers. Without further discussion, we think the conclusion inescapable, that the relation of principal and agent existed between appellee and its subordinate unions, including Local No. 47. Although the jury found that Local No. 47 in its dealings with the appellant did not act on instructions from the ap-pellee, we think that entirely immaterial if in law the relation of principal and agent existed. In Clarkson v. Laiblan, 202 Mo. App. 682, 216 S.W. 1029, the court held that “The members of a voluntary association, such as a labor union, are liable for the wrongful acts of the agent of the association within the scope of his authority, though they have no knowledge of such acts, and do not direct him in performing them or approve- of their commission.” Par. 7, Syl.

The statement heretofore given shows that notwithstanding appellant was never tried, convicted or penalized, yet he was treated by Local No. 47 and its officers as a fined and suspended member; and, although his status as a member in good standing was never disturbed, he was refused the privilege on August 15, 1940, of paying the dues owing by him and obtaining a union card; all this because he refused to pay $25 — and 25 cents per day, as fine or penalty, which had simply been recommended by the report of the Executive Board, but never acted upon; therefore, it was contended that he had forfeited his membership in the union by failure to pay his dues, and this' was set up in appellee’s answer as one of the grounds of special defenses urged.

These happenings obviously were not concealed from appellee, as it was the duty of the secretary of Local No. 47 to "(a) Furnish the Secretary-Treasurer of the International Union, at the end of each month, with a correct statement of the standing of the members of his union, showing the number of members in good standing, suspended, died, reinstated and the reasons therefore; also the number of members withdrawn and received by card, with members’ names and International card number and the names of all applicants for membership, with proper classification”. Nothing appearing in the record to the contrary, the presumption must be indulged that the secretary of Local No. 47 discharged these duties and made report to appellee, the International Union, in regard to the status of appellant. But this is not all that the record reflects, as it appears that the appellee, through its president who had full knowledge of the facts, ratified and approved the action of Local No. 47. It seems that on June 29, 1943, and again on July 12, 1943, appellant wrote to Mr. George L. Berry, president of the ap-pellee union, lengthy letters in which he laid his case before the president of the union in what appears to be an appeal for relief from .the predicament in which he found himself. Mr. Berry answered on July 26, 1943, as follows: “Dear Sir and Brother: I have before me a report from the president of Fort Worth Printing Pressmen and Assistants’ Union No. 47, who has transmitted to me a synopsis of the records in your case, and I regret very much that I do not find sufficient justification to consider the matter further and, therefore, I refer you to the conclusions of this office set forth in my communication to you dated July 2, 1943. With kind regards, I am * * A similar situation was presented in the case of Thompson v. Grand International Brotherhood, etc., 41 Tex.Civ.App. 176, 91 S.W. 834, 839, where in course of the discussion the court said: “The proposition is supported by authority, that the Grand International Brotherhood would be responsible for the acts of the local division as its agent. Mitchell v. Leech [69 S.C. 413], 48 S.E. 290, 66 L.R.A. 723 [104 Am.St.Rep. 811]; [Order] of Columbus, etc., v. Fuqua, Tex.Civ.App., 60 S.W. 1020. If, however, there be any doubt as to this, there can be none that it is made liable, if any wrong has been committed by the act of its supreme officer, Grand Chief Engineer Arthur, who acted with full notice of the wrongful action of the subordinate division, or at least with notice of such facts as would have put him upon inquiry as to the fact that appellant had been really expelled upon the ground that he had testified against the railway company. This notice was given to Arthur by appellant’s letter to him, in connection with the charges, the report of the committee and proceedings of the division and the letter of J. J. Bartholomew to the officers' and members of division 201, of November 15, 1902, which was sent to him, with the other papers.” The courts of the State of Illinois have made very explicit statements in rer gard to the question of principal and agency involved in the contractual relation between labor unions and other such orders, and their subordinates. In the case of High Court of Independent Order of Foresters v. Schweitzer, 171 Ill. 325, 49 N.E. 506, 507, the Supreme Court of Illinois said: “It is contended that this appellant cannot be held bound by the action of the subordinate lodge, and therefore what the latter may have known or done is wholly immaterial. Without entering into a discussion of the question at length, we are satisfied that, under the constitution and by-laws of the order, the relation of the subordinate lodges to the high court (Lodge) was that of agency.” Citing Coverdale v. Royal Arcanum, 193 Ill. 91, 61 N.E. 915; Grand Lodge A.O.U.W. v. Lachmann, 199 Ill. 140, 64 N.E. 1022; also to the same effect see Jones v. Supreme Lodge Knights of Honor, 236 Ill. 113, 86 N.E. 191, 127 Am. St.Rep. 277.

However, appellee contends in effect that it would not be liable for the wrongful acts of its subordinate Local No. 47, in that the appellant failed to pursue his right of appeal as prescribed by the constitution and laws of the order (article 23, p. 71), hence appellee did not review, ratify or confirm the wrongful act of Local No. 47 (appellee’s second counterpoint); and in course of argument (p. 24, appellee’s brief) this statement is' made: “It would be a denial of every known concept of the due process oí law for appellee as the primary union to be assessed for damages for the subordinate union or its secretary’s wrongful act, without the appellee having had a chance to review such action * *

We do not think appellee’s contention is correct. Appellant is not seeking a restoration of membership in the union, but damages for the wrongful violation and disregard of his' contractual rights as a member of the union; therefore was not required to exhaust the right of appeal as a condition precedent to the maintenance of the action for damages. Our Supeme Court ruled directly on this point in the case St. Louis & S.W. Ry. Co. of Texas v. Thompson, 102 Tex. 89, 113 S.W. 144, 147, 19 Ann.Cas. 1250; referring to that case the court said: “It is a suit for damages occasioned by his expulsion, and one in which his property rights, as well as personal rights, are involved. We are of opinion that it was not necessary for him to have prosecuted his appeal further than he did before instituting his suit for damages. Benson v. Screwmen’s Ben. Ass’n, 2 Tex.Civ.App. 66, 21 S.W. 562; Bauer v. Samson Lodge K. P., 102 Ind. 262, 1 N.E. 571. On application for mandamus to restore plaintiff to membership, the court would not take jurisdiction until the applicant had exhausted his remedies under the laws of the Brotherhood. The same reason does not apply in a suit for damages. The right to apply to the courts for redress of such injuries as in this case exists in favor of all citizens, and could not be abridged by any association except by the consent of the member. The defendants have no ground upon which to stand in demanding that the remedy of appeal should be exhaused before they are called upon to repair the injury they have inflicted upon Thompson. The continuance of his membership in the Brotherhood does not concern the defendants.” To the same effect see McCantz v. Brotherhood, etc., Tex.Civ.App., 13 S.W.2d 902.

We are of opinion, therefore, that the court erred in holding that appellee was not liable for the acts of its subordinate lodge No. 47 in its dealings with the appellant.

We are also of opinion the court erred in holding that appellant’s cause of action was barred under the two-year statute of limitation, in that it was a tort action. In the first place we do not think the question of limitation as a fact issue was before the court at all for adjudication; the record reveals that in its answer appellee urged special exception No. 8 in which, as a question of law, the issue of two-year limitation was raised. However, the judgment entry contains the recital that this exception to appellant’s petition was sustained; thereafter appellant was permitted to amend, and appellee urged the same exception to the amended plea, which the court overruled (Tr. p. 40), and the subject was dropped at that, as appellee, in presenting its fact issue, failed utterly to affirmatively plead the two-year statute of limitation. We are of opinion, therefore, that the court was without a pleading to predicate a ruling on limitation as a fact issue. However, we have considered the question as though that procedural matter was not involved. The trial court held that the two-year limitation applied because plaintiff's cause of action was based upon a tort. A tort is understood to be a wrongful act not involving a breach of contract for which a civil action may be maintained. The instant case, in our opinion, is not of that nature; appellant seeks damages for breach and disregard of his contractual rights as a member of the appellee Union. The record discloses that after the Executive Board of Local No. 47 filed charges against appellant and recommended that he be suspended and fined, no further action was taken. Although never accorded the contractual right of a fair and impartial trial and punishment if found guilty according to the constitution and laws of the union (article 37, p. 108), he was nevertheless treated as a suspended and fined member, and immediately discharged from the union job upon which he was then working and had been working for some time; and later, on August 15, 1940, appellant offered to pay the dues owing by him to the union and obtain a union card, which was his contractual right; but was' refused this right, and since has been deprived of the rights, privileges and benefits of a member of the union. We are of opinion, therefore, that appellant’s cause of action is based essentially upon breach of his contract rights as a member of this union.

It is generally considered that the written constitution and laws of a labor organization constitute a contract between the organization, its subordinate unions, and members, and that the rights of parties thereunder are controlled by the rules of law applicable to written contracts. United Brotherhood, etc., v. Carpenters Local Union, etc., Tex.Civ.App., 178 S.W. 2d 558; Electrical Contractors’ Ass’n v. Schulman Elec. Co., 324 Ill.App. 28, 57 N.E.2d 220, 227. In Elder, Dempster & Co. v. St. Louis S.W. Ry. Co., 105 Tex. 628, 154 S.W. 975, our Supreme Court, in passing upon a similar question, said: “The words ‘actions for debt,’ as used in statutes of limitations * * * include suits brought to recover money for breach of a contract in writing, without regard for the technical distinction between debt and damages.” Quite a number of cases were cited by the court in support of the doctrine announced. To the same effect, see Gordon v. Rhodes & Daniel, 102 Tex. 300, 116 S.W. 40; Hillman v. Gallagher, 103 Tex. 427, 128 S.W. 899.

Hence we conclude that the court was in error in holding that appellant’s cause of action was barred under the two-year statute of limitation.

Appellee plead defensively (Tr. p. 49), and urges in counterpoint, that it was appellant’s duty to mitigate his damages if he was wrongfully prevented from pursuing his calling as a pressman, since it is admitted that he could have paid his fine of $25 and the suspension fine of 25 cents per day, plus his accrued dues, and received his union card. Hence it is contended that appellant’s damages at most, if the proceedings of the subordinate union were illegal and void, would have amounted to only $61.20 for a traveling card, or $86.20 for a local card.

We do not think the doctrine of mitigation of damages is applicable to the facts in this case. No fine was ever imposed upon the appellant according to the laws of the union, nor was he properly suspended or excluded as a member; yet he was treated as such. He did not have to submit to this wrong. This point was decided by the Texarkana Court of Civil Appeals in Southwestern Gas & Electric Co. v. Stanley, 45 S.W.2d 671, 674, and the case was affirmed by the Supreme Court in 123 Tex. 157, 70 S.W.2d 413. In that case a similar contention was made, with reference to which the court said: “To so require the appellee to do would, in effect, be forcing him to abandon his legal right and waive damages that may arise from the breach of contract or tort and be converting his rights into a coercive way of merely paying debts entirely apart from the particular contract. Quoting from Galveston, H. & S. A. R. Co. v. Zantzinger, 92 Tex. 365, 48 S.W. 563, 566, 44 L.R.A. 553, 71 Am.St.Rep. 859: ‘The rule is that if a plaintiff, who has been injured by the negligent conduct of the defendant, fails to exercise reasonable care to avoid the consequences of his injury, he cannot recover for so much of his damage as results from that failure. But does this rule apply to the case of a willful injury? We are of opinion that it does not. Since one who has committed an assault and battery upon another cannot urge in his defense that the plaintiff might by the use of due care have avoided the battery, we think where the injury is intentional he should not be permitted to say, in reduction of the damage, that the plaintiff might have prevented them, at least in part, by careful conduct on his part.’ * * * ” The court cited as similar in principle the case of Harvey v. Atlantic Coast Line R. Co., 153 N.C. 567, 69 S.E. 627.

It follows from what has been said that we are of opinion the court below erred in rendering judgment for appel-lee, but should have rendered judgment for the appellant on the verdict of the jury. Therefore, pursuing the procedure announced by the Supreme Court in McAfee v. Travis Gas Corp., 137 Tex. 314, 324, 153 S.W.2d 442, reannounced in Universal Life & Acc. Ins. Co. v. Shaw, 139 Tex. 434, 163 S.W.2d 376, 379, the case is remanded to the trial court with instructions to enter judgment for appellant nunc pro tunc on the verdict of the jury for the full amount found, less the sum of $410 remitted; after which the rights as between the litigants will be the same as though the judgment of the district court here directed had been duly entered originally, instead of the judgment that was rendered.

Reversed and remanded with instructions.

BOND, C. J., dissents, being in accord with the holding of the trial court.