United Ass'n of Journeymen & Apprentices of Plumbing & Pipe Fitting Industry of U.S. & Canada v. Borden

• Decision Date: 04 November 1959
• Docket Number: No. A-7058,A-7058
• Parties: UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA et al., Petitioners, v. H. N. BORDEN, Respondent.
• Court: Texas Supreme Court

Page 739

328 S.W.2d 739

160 Tex. 203

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA et al., Petitioners, v. H. N. BORDEN, Respondent.

No. A-7058.

Supreme Court of Texas.

Nov. 4, 1959.

Mullinax, Wells & Morris, Dallas, for petitioners.

Lyne, Blanchette & Smith, Dallas, for respondent.

HAMILTON, Justice.

(1) On the principal question in this case, we hold that a member of an unincorporated association can maintain an action against the latter for damages caused by an intentional wrong knowingly committed by one of its agents, provided the association participates in or otherwise authorizes or ratifies the wrongful conduct. The suit is an action for damages brought by H. N. Borden, respondent, against the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry and its Local Union 100, petitioners. Each petitioner is an unincorporated labor union. The trial court sustained petitioners' pleas in abatement and dismissed the suit on two grounds, holding: (1) that respondent, as a member of the two labor organizations, has no standing to maintain this suit against them for money damages; and (2) that the matters of which the respondent complains are within the exclusive jurisdiction of the National Labor Relations Board. Having concluded that neither of these contentions is sound, the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause for trial. 316 S.W.2d 458.

The holding of the Court of Civil Appeals that respondent's complaint does not lie within the exclusive jurisdiction of the National Labor Relations Board is not challenged here, and it is unnecessary for us to consider that question. We are confronted at the outset, however, by petitioners' contention that respondent did not perfect his appeal by timely filing an appeal bond. Within thirty days after the entry of final judgment in the district court, respondent filed a bond conditioned that he would pay all costs that might be adjudged against him in the suit. It did not specify the judgment from which he wished to appeal, and was not conditioned that his appeal would be prosecuted with effect.

(2, 3) Petitioners moved the Court of Civil Appeals to dismiss the appeal, and respondent thereupon requested and was granted leave to amend the bond. A proper appeal bond was then filed promptly, but this was after the expiration of the thirty-day period allowed by Rule 356, Texas Rules of Civil Procedure. Petitioners argue that the original bond was in no sense an appeal bond and therefore could not be amended. We do not agree. Rule 430, T.R.C.P., provides that when there is a defect of substance or form in any appeal bond, then on motion to dismiss for such defect, the appellate court may allow the same to be amended by filing a new bond. This authorizes the amendment of any sort of instrument which can be said to be a bond and which was filed for the purpose of taking an appeal. See Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141. Although the original bond does not show on its face that it was intended to serve as an appeal bond, there is other evidence in the record which supports an implied finding by the Court of Civil Appeals that the same was filed in a bona fide attempt to invoke appellate court jurisdiction. We presume such a finding in support of its action, and hold that the intermediate court did not err in permitting the bond to be amended.

Turning now to the merits of the appeal, respondent alleged that he is now a member of the two labor organizations. While a member of the United Association's local union in Galveston, he was promised a job by Farwell Construction Company on the construction of the Republic National Bank Building in Dallas. After obtaining a clearance card from the Galveston local stating that he was in good standing and should be admitted to any other local union of the United Association, he went to the headquarters of Local Union 100 in Dallas for the purpose of being accepted into membership in order that he might take the job which had been promised him. In the meantime, Farwell Construction Company had placed a call with Cleo Lanham, agent and business manager of Local Union 100, for respondent to go to work on the bank building. Landham at first refused to accept respondent's clearance card. Several days later, the card was accepted, but at the same time respondent was cursed and abused by Lanham and informed that as long as the latter had power, he would in his capacity as agent and business manager see to it that respondent was never allowed to work on the bank. Although respondent thereafter submitted his complaint to the petitioners at a meeting, he was offered no remedy and was told that if he continued to complain he would be discharged from the union altogether.

It was further alleged that the petitioners, with actual knowledge of the acts of their agent and business manager, had acquiesced in and ratified same by their subsequent conduct in that respondent was never offered a remedy or allowed to work on the bank building; that petitioners have, without any cause or reason whatsoever, willfully and discriminatorily refused to allow respondent to do such work; and that the willful, malicious and discriminatory acts of the petitioners constitute a conspiracy and a wrongful interference with respondent's right to contract and work. There are also allegations of the amount which respondent would have earned on the bank job, and of his actual earnings in other employment he was able to find, and a prayer for actual and exemplary damages.

Petitioners contend and the trial court held that this case is governed by the general rule that an unincorporated association is not liable to one of its members for damages occasioned by the wrongful act of another member or agent of the association. The reason for such immunity is that the injured member and the association are regarded as coprincipals and the tort-feasor as their common agent. The wrongful conduct is thus imputable to the plaintiff for purposes of his action against the association. See Annotation, 14 A.L.R.2d 473. Typical of the cases in which these principles have been correctly applied are De Villars v. Hessler, 363 Pa. 498, 70 A.2d 333, 14 A.L.R.2d 470, where the plaintiff was injured as a result of the negligent operation of a steam table maintained by the defendant association at a county fair, and Hromek v. Gemeinde, 238 Wis. 204, 298 N.W. 587, which holds that an unincorporated labor organization is not liable for injuries received by a member who tripped over a platform negligently placed by the officers of the union in a hall rented for a union meeting. In each instance the negligence occurred in the course of an undertaking which was for the benefit of all members of the organization, including the plaintiff, and under these circumstances it was entirely proper to impute the wrongful conduct to the latter.

It cannot be said, however, that a labor organization or other unincorporated association is never liable to a member for the wrongful conduct of one of its agents. Since the association's immunity rests upon the premise that the tort-feasor also acts as agent for the injured member, the rights and liabilities of the parties necessarily depend upon the relationship existing at the time the wrongful act is committed. For example, where the relation of principal and agent is deemed to exist between the plaintiff and the association's representative when the wrong was done, the former could not acquire a cause of action against the organization by simply terminating his membership. If anyone acting for the association is always to be regarded in law as agent for all of its members in whatever he may do, it would seem to follow that a member could not even recover damages for wrongful expulsion. In such a case the plaintiff might not be a member at the time of suit, but this would not alter the fact that the association's representative was acting as his agent in expelling him from membership.

It is well settled, however, that a member does have a cause of action for damages against his union for wrongful expulsion. See International Printing Pressmen and Assistants' Union of North America v. Smith, 145 Tex. 399, 198 S.W.2d 729; International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018. The question now under consideration is not discussed in these cases, but the reasons for holding that the union representative does not act as agent for a member who is wrongfully expelled are well expressed in Bonsor v. Musicians' Union, (Eng.) 3 W.L.R. 788, 3 All E.R. 518, as follows:

'For the purposes of this appeal I am prepared to accept that proposition (i. e. the general theory that the agent is the agent of each member of the association) without inquiry as to what, if any, are the limits to be put on it. But one of its essential ingredients is that the act complained of should be done by the agent on behalf of the injured member. Was the Court of Appeal right in holding that the committee which expelled Mr. Kelly was, in so doing, acting as his agent? * * * To say that this is done on behalf of the person expelled seems to me to be an unwarranted extension of the agency and quite out of keeping with reality.'

(4, 5) There is thus at least one exception to the general rule that a union representative is to be regarded as an agent for all of its members in everything he does. The wrongful act will not be imputed to an injured member if committed in the course of an undertaking that is strictly adverse to the latter's interests. This is simply another version of the agency rule that a principal is not liable for the torts committed by his agent while acting adversely to him. See 3 C.J.S. Agency § 259; Mechem on Agency, 2d ed. 1914, Vol. 2, p. 1311, § 1728.

The...