Taylor v. Marine Cooks & Stewards Ass'n of Pac. Coast

Decision Date30 April 1953
Citation256 P.2d 595,117 Cal.App.2d 556
CourtCalifornia Court of Appeals Court of Appeals
PartiesTAYLOR v. MARINE COOKS & STEWARDS ASS'N OF PACIFIC COAST et al. FERNANDEZ v. MARINE COOKS & STEWARDS ASS'N OF PACIFIC COAST et al. ALMEIDA et al. v. MARINE COOKS & STEWARDS ASS'N OF PACIFIC COAST et al. HESSE v. MARINE COOKS & STEWARDS ASS'N OF PACIFIC COAST et al. Civ. 15314, 15315, 15369, 15370.

Gladstein, Andersen & Leonard and George R. Andersen, San Francisco, for appellants.

Edward E. Pencevich, San Francisco, for respondents Taylor and Fernandez.

Ropers & Majeski, Redwood City, Robert J. Barbieri, San Francisco, for respondents Almeida and Hesse.

DOOLING, Justice.

Four appeals presenting common basic questions are here consolidated. They are taken from judgments ordering respondents restored to their rights in appellant union and awarding them damages. The plaintiffs and respondents, five in number, were all members of appellant union and were all subjected to disciplinary action as a result of hearings before committees chosen in the same manner as were the committees held to have been improperly selected in Harris v. National Union, etc., Cooks & Stewards, 98 Cal.App.2d 733, 221 P.2d 136. It results that under the rule of law established in the Harris case the respondents' 'contract right to be tried by a committee elected by the membership', Harris v. National Union, etc., Cooks & Stewards, supra, 98 Cal.App.2d page 737, 221 P.2d at page 139, was clearly violated. Faced by this fundamental violation of respondents' established legal rights appellants are reduced to a rear-guard action in which they seek by a variety of secondary arguments to avoid the legal consequences of what was indisputably primary wrongful conduct. We note because some mention is made in the briefs of the new constitution that the trials were all held while the original constitution construed in the Harris case was still in effect. The attempted adoption of a so-called new constitution in November, 1945 was judicially nullified by a judgment of the superior court affirmed in Weber v. Marine Cooks' & Stewards' Ass'n, 93 Cal.App.2d 327, 208 P.2d 1009. It was not until December 11 1947 that another constitution was adopted and the latest order disciplining any of the respondents was that disrating Fernandez in September, 1947.

The first complaint in any of the actions was filed by Almeida and Griffey on October 17, 1945. At that time charges were pending against these two for their participation with others in the publication of a newspaper critical of the actions of some of the union's officials and of the proposed new constitution. They sought in one count an injunction to prevent the trial of these charges and in a second count declaratory relief as to their right as members of the union to engage in the questioned activities which had been made the basis of the charges. A demurrer was sustained without leave to amend to the first count only and the appellants filed an answer to the count seeking declaratory relief. Thereafter orders of expulsion, after trial before improperly constituted committees as above noted, were made--in the case of Almeida on November 2, 1945 and of Griffey on November 8, 1945. On October 7, 1946 Almeida and Griffey filed a supplemental complaint alleging their expulsion, its illegality and damages for loss of employment. (This pleading is not in the record but appellants in their opening brief stipulate that it was filed.) On March 15, 1948 a second supplemental complaint was filed containing similar allegations and asking for like relief.

Appellants conceive that it was error to permit the filing of these supplemental complaints. We cannot agree. Code Civ.Proc. § 464 permits the filing of a supplemental complaint 'alleging facts material to the cases occurring after the former complaint'. The only question is whether the expulsion of Almeida and Griffey and the consequent damage to them are facts material to the case stated in their original complaint. Although a demurrer had been sustained to their first cause of action the count which remained sought declaratory relief as to their right under the constitution to engage in the very activities which were the basis of the charges then pending against them. When the trial of these charges resulted in their expulsion those were 'facts material to the cases occurring after the former complaint.'

In Jacob v. Lorenz, 98 Cal. 332, 33 P. 119, plaintiff originally commenced an action to enjoin defendants from destroying a ditch. Defendants in their answer alleged that since the commencement of the action they had destroyed a portion of the ditch. Plaintiff then by leave of court filed a supplemental complaint alleging the destruction of this portion of the ditch and asking damages therefor. The court said, 96 Cal. at page 338, 33 P. at page 121: 'The defendants, by their own act, made different or additional relief necessary. The subject of the action was plaintiff's property, and his right to convey water in his ditch across defendants' mine. That right was not destroyed, and was still the subject of litigation. * * * It is no objection to a supplemental complaint that different or additional relief is asked for. (Citation.) Indeed, the object of the supplemental complaint is to obtain additional or different relief without resort to a new action. Not only did the court not err in refusing to strike out the supplemental complaint, but appellants should not be heard to complain that their efforts to defeat plaintiff's action, by making the relief he sought inadequate, had not proved successful.'

By the appearance of some of respondents before the trial committees without objection and the failure of others to appear at all it is argued that respondents have waived their right to object that the committees were selected in a manner not authorized by the constitution. Appellants cite no cases which support the view that the right to have a trial by a tribunal whose members are selected in the manner required by the constitution is waived by mere inaction or failure to make express objection. Such a purported tribunal is in fact no tribunal at all and while unincorporated associations are not bound to proceed with the formality of courts of law, McConville v. Milk Wagon Drivers' Union, 106 Cal.App. 696, 701, 289 P. 852, the formation of the trial body in accordance with the contract rights of the accused member is not a mere matter of form or procedure but is a substantial substantive right of which he should not be lightly deprived. Hopson v. National Union, etc., Cooks, and Stewards, 116 Cal.App.2d 320, 253 P.2d 733. At first blush People ex rel. Schults v. Love, 199 App.Div. 815, 192 N.Y.S. 354, may appear to announce the rule that failure to object to an improperly selected tribunal will amount to a waiver. A reading of the entire opinion shows however that the trial there was before the union as a whole in open meeting and the only objection was that the officers of the union had not been properly elected. The court said, 192 N.Y.S. at page 356: 'but the officers were de facto officers, and he interposed no objection at the time, and therefore, even if such objection would have been of any avail, he cannot now complain.' (Emphasis ours.) In a later New York case where the trial was before an illegally constituted committee, as here, the court said: 'There was no trial before a legally constituted committee, and the so-called judgment was wholly void.' Jose v. Savage, 123 Misc. 283, 205 N.Y.S. 6, 7.

The claim that the statute of limitations had run against the cause of action for restoration to the union and damages set up in the supplemental complaints is not tenable. The first supplemental complaint of Almeida and Griffey was filed less than one year after their expulsions. The statute of limitations for 'coercive' relief only commences to run from the date of the completed wrong and the fact that declaratory relief may have been sought before there has been a completed breach of the obligation does not commence the statute running against the later completed wrong. Martin v. Henderson, 40 Cal.2d 583, 255 P.2d 416. Subsequent amendments which do not introduce a new cause of action are not subject to the statute of limitations, the effective pleading being the first in which the particular cause of action is set out or even attempted to be stated. 16 Cal.Jur., Limitation of Actions, secs. 144, 145, p. 549.

The question of laches is primarily one for the trial court. Hopson v. National Union, etc., Cooks and Stewards, supra, 116 Cal.App.2d 320, 253 P.2d 733; 10 Cal.Jur., Equity, sec. 64, p. 527. Almeida and Griffey filed their first supplemental complaint seeking reinstatement and damages approximately eleven months after their expulsion. Their assertion of these rights by court action within that relatively short period of time cannot support the claim that they were guilty of laches as a matter of law. In Griffin v. International Longshoremen's and Warehousemen's Union, 109 Cal.App.2d 823, 241 P.2d 552, most strongly relied upon by appellants, the original action was not filed until two...

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