Caruso v. Local Union No. 690 of Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America

• Decision Date: 29 September 1983
• Docket Number: No. 49280-8,No. 28,28,49280-8
• Citation: 670 P.2d 240,100 Wn.2d 343
• Court: Washington Supreme Court
• Parties: , 120 L.R.R.M. (BNA) 2233, 100 Lab.Cas. P 55,461 Robert E. CARUSO, Respondent, v. LOCAL UNION NO. 690 OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, and Joint Councilof International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendant.

Page 343

100 Wn.2d 343

670 P.2d 240, 120 L.R.R.M. (BNA) 2233,

100 Lab.Cas. P 55,461

Robert E. CARUSO, Respondent, v. LOCAL UNION NO. 690 OF INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF

AMERICA, Petitioner,

and

Joint Council No. 28 of International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America, Defendant.

No. 49280-8.

Supreme Court of Washington,

En Banc.

Sept. 29, 1983.

Hafer, Cassidy & Price, Hugh Hafer, Robert Omberg, Seattle, for petitioner.

Joseph J. Ganz, Spokane, for respondent.

DIMMICK, Justice.

Robert E. Caruso, respondent, brought suit against Local 690 and Joint Council 28 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America for intentional interference with his business relations. He later amended his complaint to additionally allege damages under a defamation cause of action. Both claims arose from a "do not patronize" article published in a weekly teamsters union paper. Local 690, petitioner, appealed a judgment entered upon an unsegregated jury verdict awarding respondent damages. ¹ The Court of Appeals affirmed in Caruso v. Local 690, Int'l Bhd. of Teamsters, 33 Wash.App. 201, 653 P.2d 638 (1982). We reverse and hold that the tortious interference with business cause of action must be dismissed. We agree that the trial court did not abuse its discretion in granting respondent leave to amend his complaint. Because the jury verdict was unsegregated, we remand this matter for a new trial solely on the defamation action.

Caruso was the sole proprietor of "Linoleum & Carpet City" in Spokane, Washington. He also owned a parking lot approximately a quarter of a mile from his business, where he rented spaces on a monthly basis to members of the general public. Periodically, delivery trucks blocked access to the lot.

On October 26, 1973, Caruso found a beer truck and another smaller van blocking the entrance to his parking lot. After unsuccessfully trying to locate the drivers, respondent, noticing the beer truck was unlocked and the keys were in the ignition, removed the keys, secured the truck, and returned to his place of business. He telephoned the owner, whose name and address were on the side of the truck, and told him to pick up the keys and remove the truck.

Caruso soon received a belligerent telephone call from Mr. Contos, the driver of the beer truck. Caruso then called a tow truck to have both vehicles removed and proceeded On November 9, 1973, the following article was published in the Washington Teamster, a weekly paper mailed primarily to union members, active and retired. It was also distributed to several universities and libraries.

                back to the lot.   Mr. Contos and the driver of the van were at the lot.   The driver of the van settled his share of the tow truck costs with the tow truck driver, but the representative of the beer truck's owner and Contos refused to pay.   Contos proceeded to curse Caruso and threaten him.   He also told Caruso that he would report him to the teamsters union and the union would "break" him.   The tow truck driver refused to tow the beer truck until the police arrived.   Finally, at the direction of the police, the truck was towed into an adjacent alley
                

Don't [P]atronize Carpet City in Spokane

This is to notify all members of Teamsters Union, Local 690 and all other Teamsters and Laboring people in the State of Washington that when traveling to and from the Expo City--"please do not patronize Carpet City Carpet & Linoleum Shop at West 518 Main Avenue"--Spokane, Washington," [sic ] (Expo City). The reasons for this request are: This Company is continuously harassing the Teamsters and other laboring people who may at some time use the parking facility at this place of business to make a delivery because of the congested traffic problems in Expo City since construction is going on mainly in that area. Someone from this Company removes the keys of such vehicles, have [sic ] the equipment impounded and create [sic ] many problems for these employees and their employers including the cost of impoundment to those effected. [sic ]

This company will not cooperate with these drivers when told that they will move their equipment and apologize for parking in this area--their equipment is still impounded!

We request that all Laboring people--Teamsters or otherwise--do not [p]atronize Carpet City Carpet & Linoleum Shop.

Thanks kindly for your Support.

Teamsters Union, Local 690

This article was printed once on the front page of the Soon after the publication of the first three articles, unidentified persons began calling Linoleum & Carpet City and stating that they would not shop at Carpet City. Some characterized the store as a "scab" outfit. Other callers referred to Caruso by various derogatory and profane terms. Sales dropped dramatically, for whatever reason, and in May 1974, he relocated his business hoping to minimize his losses.

                teamster paper, and twice more in substantially the same form on page 5.   The article was again printed in a later edition distinguishing Caruso's business from a store with a similar name
                

On December 17, 1974, Caruso filed the present action seeking damages for business interference. His original attorney died and he thereafter hired another attorney. Trial was eventually set for April 28, 1980. In early April, Local 690 moved for summary judgment to dismiss respondent's claim for business interference. At that time Caruso moved to amend his complaint to allege damages under a defamation cause of action arising from the articles. The trial court denied the motion for summary judgment and granted the motion for leave to amend. Thereupon, at Local 690's request, the trial was continued until January 1981.

I

BUSINESS INTERFERENCE CLAIM

Petitioner's only contention before this court is that the publication of the articles is constitutionally protected and cannot give rise to liability for the tort of business interference under NAACP v. Claiborne Hardware Co., --- U.S. ----, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). We agree.

In Claiborne, merchants sued the NAACP and its members for economic losses sustained during a 7-year boycott of their businesses. During the boycott there were speeches, marches, picketing, threats, and several acts of violence. The United States Supreme Court held that the First and Fourteenth Amendments preclude imposition of liability Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper. Petitioners were engaged openly and vigorously in making the public aware of respondent's real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability.

                for tortious interference with business on boycott participants or the NAACP, even though some boycott participants were violent.   The opportunity to persuade others to action is clearly protected.   The Claiborne Court quoted  Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971), where the Court held in a case involving the peaceful distribution of leaflets
                

(Citations omitted.)

The reasoning of the Claiborne Court is applicable here. Local 690, perceiving a grievance between one of its members and Caruso, asked its members and other "laboring people" to boycott his business. Though perhaps coercive, petitioner's activity was speech in its purest form and thus is entitled to at least the same degree of protection the NAACP's "speech plus conduct" activities were afforded against imposition of damages for business interference.

We have previously held that "damage to the business of persons subject to a primary boycott, lawfully conducted, is one of the inconveniences for which the law does not afford a remedy." Wright v. Teamsters' Local 690, 33 Wash.2d 905, 913, 207 P.2d 662 (1949). Although petitioner in the instant case was not boycotting in its usual realm (i.e., organizing workers or informing the public of a dispute with an employer), its "do not patronize" message was protected. Protecting the speech here does not affect the statutory prohibition against secondary boycotts which has been upheld. Claiborne, supra 102 S.Ct. at 3425-26.

Caruso's only response to the Claiborne analysis is that the information upon which the "do not patronize" request was based is false and thus not protected. His claim of falsity,

however, properly goes to the defamation cause of action.

II AMENDMENT TO THE COMPLAINT

Local 690 alleges error because the trial court allowed Caruso to add a defamation claim 5 years 4 months after he had filed his original complaint.

Amendments to pleadings are governed by CR 15(a) which provides, in pertinent part, that "a party may amend his pleading only by leave of court ... and leave shall be freely given when justice so requires." The purpose of pleadings is to "facilitate a proper decision on the merits", Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957), and not to erect formal and burdensome impediments to the litigation process. Rule 15 of the Federal Rules of Civil Procedure, from which CR 15 was taken, "was designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result." United States v. Hougham, 364 U.S. 310, 316, 81 S.Ct. 13, 18, 5 L.Ed.2d 8 (1960). CR 15 was designed to facilitate the same ends.

Several factors are usually used as criteria by trial courts to determine the propriety of a motion for leave to amend. Petitioner asserts that one of those factors alone, undue delay in making the motion, requires that we reverse the trial court's decision to allow the amendment. We have held that undue delay on the part of the...