Smith v. International Printing P. & A. Union

• Decision Date: 28 September 1945
• Docket Number: No. 13639.,13639.
• Citation: 190 S.W.2d 769
• Parties: SMITH v. INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH AMERICA.
• Court: Texas Court of Appeals

Page 769

190 S.W.2d 769

SMITH v. INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH AMERICA.

No. 13639.

Court of Civil Appeals of Texas. Dallas.

September 28, 1945.

Rehearing Denied November 16, 1945.

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Action by L. R. Smith against International Printing Pressmen & Assistants' Union of North America, to recover actual and exemplary damages for being wrongfully deprived of his standing in the union and prevented from obtaining union employment as a pressman. Judgment for defendant, and plaintiff appeals.

Judgment reversed and cause remanded with instructions.

Henry Klepak, of Dallas, for appellant.

W. D. White and Earl A. Forsythe, both of Dallas, for appellee.

LOONEY, Justice.

The appellant, L. R. Smith, sought damages, actual and exemplary, against the International Printing Pressman & Assistants' 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's union and had been for over ten years prior to the events that culminated in the present litigation, having joined the union through appellee'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 5:30. 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...