United Broth. of Carpenters and Joiners of America, Local Union No. 55 v. Salter

• Decision Date: 04 March 1946
• Docket Number: 15471.
• Citation: 167 P.2d 954,114 Colo. 513
• Parties: UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION NO. 55, v. SALTER.
• Court: Colorado Supreme Court

167 P.2d 954

114 Colo. 513

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION NO. 55, v. SALTER.

No. 15471.

Supreme Court of Colorado, en Banc.

March 4, 1946

Rehearing Denied April 8, 1946.

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Action by Francis H. Salter against the United Brotherhood of Carpenters and Joiners of America, Local Union No. 55, for damages or an injury sustained in an automobile accident. To review a judgment for the plaintiff, the defendant brings error.

Reversed.

BAKKE J., dissenting.

W. A Alexander, Donald B. Robertson, and Wood, Shuteran, Robinson & Harrington, all of Denver, for plaintiff in error.

Walter F. Scherer and John F. Mueller, both of Denver, for defendant in error.

STONE, Justice.

Francis H. Salter suffered injury from an automobile accident while riding as the guest of one Johns, and recovered judgment against plaintiff in error as Johns' employer.

The first ground urged for reversal is that the evidence is insufficient to establish 'negligence consisting of a wilful and wanton disregard of the rights of others,' as required under our guest statute. '35 C.S.A. c. 16, § 371. An examination of the testimony of plaintiff, who is the only living party and witness to the accident, shows considerable inconsistency, especially as between his deposition and his subsequent testimony on the stand, but he testified as to excessive speed at which Johns drove; as to his boasting that he would show plaintiff how fast the car would go; as to plaintiff's warning Johns against going too fast, and requesting that he permit plaintiff to drive, which warning and request were ignored. The question of consistency and credibility of the testimony of plaintiff was for determination by the jury and we cannot say there was no substantial evidence to support the charge of negligence under the guest statute.

It is next urged as a ground for reversal that at the time of the accident Johns was not acting within the scope of his employment by defendant; hence we must consider whether there was any substantial evidence to support the finding of the jury in that regard. The evidence shows that the United Brotherhood of Carpenters and Joiners is composed of local unions, of which there were nineteen in the state of Colorado. Each of these was chartered and given a separate and specified territorial jurisdiction under the constitution of the national organization. This jurisdiction covered the making and maintaining of agreements with employers of carpenters concerning hours of labor, working conditions and wages as established by the union within the territory under its control. Usually each local union acted through an employed business agent who represented it in negotiating and enforcing its agreements, in enforcement of local trade rules, in acting as go-between between the men and their employer, and in obtaining employment for members.

The Denver Local Union No. 55 had jurisdiction in the area included within a fifteen-mile radius of the city of Denver, and Johns for ten years had been its elected business agent. As such he was paid a journeyman's regular full-time compensation and allowed twenty dollars a week for his expenses and use of his car in connection with his duties. Local Union No. 968 at Hasty, some 240 miles from Denver, had been organized because of the construction work then in progress at the Caddoa dam and had jurisdiction over that area. This was a small local and employed no business agent.

In addition to the local unions the constitution of the brotherhood provided for a central body of all the locals in the state which was known as the State Council of Carpenters. It had an executive board which met at prescribed times and elected a president who received no salary, but was paid his expenses incurred in traveling about the state in behalf of the council. The presidency of the state council was considered an honorary position. The president had jurisdiction throughout the state over the interests of all carpenters and in the event a dispute arose over any matter concerning the employment of union carpenters within the territorial jurisdiction of a small local union which did not have a business agent or had one who was not considered qualified, the president of the state council would usually be called upon to negotiate in behalf of the local union where the dispute existed. Johns, the ill-fated owner and driver of the car, who was killed in the accident which resulted in plaintiff's injuries, was not only business representative of defendant Denver Local No. 55, but for some years had been president of the State Council of Carpenters. As such president he had made several trips to Hasty to reorganize and assist the local union there, for which his expenses had been paid by the State Council.

The local lodges of carpenters and joiners had an agreement through their State Council of Carpenters by which a member of any local union could work in any territory outside the jurisdiction of his local by the use of what was called the 'State Council Working Card' and a referral slip furnished by his local and by further purchasing what was known as a 'working card' at the local where he was to work. When further carpenters were needed on the project at Caddoa and there were not available men there, frequently Johns would be notified, and he would attempt to procure the number needed from his local at Denver, or from Pueblo or Colorado Springs. The agreement for employment of lobor made by the Caddoa contractors was signed by plaintiff Salter for the teamsters, by one Walsh for the operating engineers and by Johns who signed for the State Council of Carpenters. Defendant Local Union No. 55 was not a party to the contract.

In addition to the organizations of the separate crafts employed on the Caddoa dam, there was a further organization of the union workers there employed, known as the Heavy Construction Council. This body represented the four vitally interested unions employed on that project; the iron workers, truck drivers, carpenters and engineers. The members of those unions working on the project were all subject to monthly assessments for its funds. Plaintiff was president of this Heavy Construction Council.

Shortly prior to the date of the accident, plaintiff, Johns, and one Walsh who was business representative of Engineers' Local No. 9, discussed going together to Caddoa dam to check up on the work there, particularly in regard to working hours and conditions of membership, as there was trouble brewing because of the employment of non-union people on the job, as well as in the matter of wages and general working conditions. The three men also discussed the matter of attempting to rent or buy a building suitable for offices and a meeting hall which they thought might be financed through contributions from the carpenters, truck drivers and engineers to a fund set up under the Heavy Construction Council. Johns and plaintiff went together to Hasty in Johns' car, and plaintiff paid nothing for transportation. They arrived in Lamar late Saturday night where they talked with Edwards, who was employed by the several unions to represent all of them during the absence of a business agent on the project, and apent the night there. The next morning Johns took plaintiff in his car to Hasty, where they learned that the contractor was away and that they could not see him until the next day. They spent the time from Before noon until about six o'clock in the evening at what plaintiff termed 'a normal beer joint and dance hall' at Hasty, which was a central congregating point for the people in that vicinity. About six o'clock in the evening they started back to Lamar intending to spend the night there, go duck hunting early the next morning, and then return to Hasty for the purpose of attempting adjustment of wage scale and hours and employment of nonunion men with the contractor. The accident occurred shortly after leaving Hasty. Plaintiff testified that Lamar was the nearest 'habitable' town.

Plaintiff's testimony, so far as it tended to establish that Johns was acting within the scope of his employment by defendant consisted largely of conclusions, as that Johns 'always acted in the capacity of business agent for Local 55, to my knowledge, on that trip.' This was refuted by plaintiff's admission that he was not familiar with the details of operation of the carpenters' union and that Johns represented all the carpenters on the job, whether or not they belonged to defendant local union. However, there was testimony by plaintiff's witness Edwards that defendant Local No. 55 was a member of the Heavy Construction Council representing the workmen on that project and that Johns while with the witness obtained an agreement with the contractor to replace nonunion men with men from Local 55 if they could furnish them, and that they did furnish them. While this testimony was contradictory of other evidence submitted, it was sufficient to raise an issue of fact to be determined by the jury, and if the jury believed the testimony of Edwards to the effect that Johns had made an agreement with the contractor for the employment of carpenters who were members of defendant Local 55, and that the trip to Hasty was made in part for the reason that the contractor was employing nonunion labor and it was desired to have such labor replaced by members of defendant local union, the jury might find by inference therefrom that Johns was acting within the apparent scope of his employment and that he had implied authority to invite plaintiff, who had like interest in behalf of other employees, to accompany him. The fact, as urged by defendant, that the...