Pandolfo v. Bank of Benson

• Citation: 273 F. 48
• Decision Date: 02 May 1921
• Docket Number: 3589.
• Parties: PANDOLFO v. BANK OF BENSON et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

273 F. 48

PANDOLFO v. BANK OF BENSON et al.

No. 3589.

United States Court of Appeals, Ninth Circuit.

May 2, 1921

[Copyrighted Material Omitted]

Jones Hocker, Sullivan & Angert, of St. Louis, Mo., and Alexander Christy & Baxter, of Phoenix, Ariz., for plaintiff in error.

Thos. Armstrong, Jr., Ernest W. Lewis, and R. Wm. Kramer, all of Phoenix, Ariz., for defendants in error.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.

GILBERT Circuit Judge (after stating the facts as above).

The defendants rely upon the proposition that the limit of liability of members of an unincorporated association is that the members are responsible for tortious acts committed by the society, where it can fairly be assumed that they were within the scope of the purpose for which the organization was formed, citing 5 C.J. 1364, and they contend that no such allegations of fact appear in the complaint. It is argued that the title of the book published by the association shows that it merely sets out an account of the proceedings of the association, and that the publication of such an account is not a matter within the scope of the purpose of the organization upon which all the members can fairly be said to be responsible. To this we cannot assent. We do not find that it appears from the complaint that the publication of the account of the annual proceedings of the association is not a matter within the scope of the purpose of the organization. The complaint distinctly alleges the contrary. It alleges that the association was engaged in publishing the book and distributing the same, that it published one such book every year, and that the book in question was the tenth of the series, and even if there were no allegation that the publication of the proceedings was within the scope of the purpose of the organization, it would be but reasonable to hold that the publication of such a volume, issued as it was annually, giving an account of proceedings of the association, was distinctly within the scope of the purpose of such an association. It appears from the complaint that the letter was read by the secretary to the association as part of the proceedings of the association, and the secretary's subsequent remarks indicated his purpose, unless otherwise directed by the association, to publish the letter in the report of the proceedings. The fact that the association approved his action in so doing is clearly deducible from the fact that the letter was embodied in the report, and that the defendant caused the report to be published and circulated. If it was true that the plaintiff had newly arrived and was 'operating in the states of Arizona and New Mexico,' and was such a man as in the letter he was said to be, the action of an association of bankers of one of those states in giving public warning against him was both appropriate and commendable.

The members of an unincorporated association are liable in their collective capacity for tort (5 C.J. 1369; 25 R.C.L. 67), and they are answerable for damages for libel published by their agent with their authority while the agent is acting within the scope of his employment, just as a corporation is liable under like circumstances (United Mine Workers of America v. Coronado Coal Co., 258 F. 829, 837, 169 C.C.A. 549; Buckeye Cotton Oil Co. v. Sloan, 250 F. 712, 719 163 C.C.A. 44; Grand Union Tea Co. v. Lord, 231 F. 390, 145 C.C.A. 384, Ann. Cas. 1918C, 1118; Muetze v. Tuteur, 77 Wis. 236, 46 N.W. 123, 9 L.R.A. 86, 20 Am.St.Rep. 115; Cotton v. Fisheries Products Co., 177 N.C. 56, 97 S.E. 712; Morse v. Modern Woodmen, 166 Wis. 194, 164 N.W. 829, Ann. Cas. 1918...