Ward v. Painters' Local Union No. 300

Decision Date15 November 1954
Docket NumberNo. 32805,32805
CourtWashington Supreme Court
PartiesA. B. WARD, Respondent, v. PAINTERS' LOCAL UNION NO. 300, a voluntary association; Brotherhood of Painters, Decorators and Paperhangers of America, a voluntary association, and M. S. Slettebo, C. M. Foy, and William J. Carroll, individually and as trustees of said voluntary association, R. J. Krabler and Robert Glynn, Appellants.

L. Presley Gill, Seattle, for appellants.

Joseph D. Holmes, Seattle, for respondent.

FINLEY, Justice.

This is an action for civil libel. The first trial of the lawsuit resulted in a verdict and judgment for the plaintiff in the sum of $21,250. On appeal, we reversed the judgment because of error in instructions to the jury. Ward v. Painters' Local Union, 41 Wash.2d 859, 252 P.2d 253. The second trial resulted in a jury verdict for plaintiff, totaling $37,719.95 on three causes of action. On the first cause of action, judgment was entered against Robert Glynn, the local union, and the three union trustees (M. S. Slettebo, C. M. Foy, and William J. Carroll) in the sum of $27,719.95. On the second cause of action, judgment was entered against the three above-mentioned trustees and the local union in the sum of $7,500. On the third cause of action, judgment was entered against R. J. Krabler and the local union in the sum of $2,500. All defendants have appealed.

The facts are as follows: A. B. Ward was financial secretary of Painters' Local Union No. 300 for a period of nine years prior to November 15, 1949. On that date, at a union meeting, Robert Glynn preferred written charges against Ward in which Ward was accused of misappropriation and embezzlement. As a result thereof, Ward was first temporarily suspended as financial secretary by vote of the union members, pending an investigation of the charges. He was thereafter tried by a union trial committee of seven union officials. At the conclusion of the trial, a majority of five of the committee prepared findings and recommendations. This report found that the facts established at the trial did not substantiate the charge that Ward had misappropriated and embezzled union funds. This majority report did find, however, that Ward had failed to account for receipts and disbursements in some instances, and recommended that Ward be fined five hundred dollars, and that he be restored to his position as financial secretary.

One member of the trial committee submitted a minority report in which he found Ward guilty of all charges of misappropriation and embezzlement, and recommended that he be removed from office. One member of the trial committee refrained from voting. At a union meeting of January 17, 1950, the majority report, which was quite favorable to Ward, and the minority report, which was quite unfavorable to Ward, were read to the union membership. The minority report quoted Glynn's charges of misappropriation and embezzlement, and stated that the charges were true in all respects. Thereupon, the trustees presented a letter to the recording secretary in which they stated that they could not reconcile themselves to the majority report and would resign from their offices as trustees. This letter was read to the membership meeting by the recording secretary of the local union. Throughout the litigation of this matter in court, the parties have not disagreed that the gist of the letter of the trustees was that they would resign if the majority report was accepted, and Ward was merely fined and then reinstated to his office in the local union. In any event, the recommendations of the majority report were then submitted to a vote of the membership. Its recommendations (reinstatement to office and imposition of a fine) were rejected. As a result, Ward's suspension became permanent.

Several months thereafter, in April, 1950, the trustees presented at a union membership meeting a report purporting to show a comparison of union expenditures (a) for the twenty-eight and one-half month period just prior to Ward's suspension, and (b) for the four and one-half month period subsequent to Ward's suspension during which the trustees operated the office. After certain tabulations, the report concluded:

'$2,060.67 represents estimated shortages between expenditures under the former Financial Secretary and Trustee's office experience.'

The membership voted to send this report to each member of the union and to Ward's bonding company.

At a still later time, in October, 1950, a letter from Ward, requesting accrued vacation pay, was read at a union meeting. According to respondent's evidence, appellant Krabler thereupon moved that the letter be tabled 'until the union was reimbursed for the money that Ward had absconded with.' This motion was carried by a vote of the membership.

The complaint sets up three separate causes of action. The first cause is based upon the written charges filed against Ward by Glynn, and upon certain acts of the trustees and actions of the union, emphasizing and calling the attention of union members to the charges filed by Glynn. The second cause of action is based upon the preparation and publication by the union trustees and the union of their report of 'estimated shortages' in the union's accounts during the period Ward was financial secretary. The third cause of action is predicated upon Krabler's alleged statement that Ward had absconded with union money.

In the first decision of this case (involving the same three causes of action as in the instant case), this court decided the following matters, which are pertinent to the present appeal: (a) we approved the trial court's holding in the first trial that the statement contained in the trustees' schedule or report (which was the basis for the second cause of action) was libelous per se; (b) we also held that the trial court's instruction in the first trial (to the effect that the statements pertinent to all causes of action were libelous or actionable per se) became the law of the case as to the first and third causes of action, since no exception was taken to the instruction with regard to the first and third causes of action; (c) we held that the publication of the trustees' report to members of the union and Ward's bonding company was conditionally privileged. However, we stated there was a jury question as to whether there had been a publication to nonunion members, and, that if there had been such publication to nonunion members, the conditional privilege was lost as to such occasions; (d) we found that the evidence upon the defense of truth was in sharp conflict and presented a proper question for the jury in each of the three causes of action; (e) we decided that the publications alleged in the first and third causes of action were conditionally privileged as a matter of law. As to conditional privilege, we said that the trial court's instruction that this defense was available, whether or not the publications were found false, had become the law of the case in the absence of any exception to the instruction. With respect to this defense, we stated that the question of abuse of the privilege by reason of the appellants' alleged malice should have been submitted to the jury. On this latter point we specifically directed that upon retrial the question of the appellants' belief and their reason for belief in the truth of the statements be submitted to the jury. We further stated that upon a new trial of this case the jury should be instructed that the privileged nature of the occasions having been established, the burden of proof was upon the plaintiff to establish an abuse of the privilege.

In the present appeal, the appellants again assign error to the trial court's refusal to grant a judgment, n.o.v., or, in the alternative, a new trial. Error is also assigned to the trial court's refusal to grant a motion to dismiss the action, and to the giving of certain instructions by the trial court.

These assignments raise many of the same issues which were urged at the first trial and appeal, namely: (a) whether the trustees' report, which was involved in the second cause of action, was libelous per se, as instructed by the trial court; (b) whether this report was conditionally privileged or was published to persons outside the union, and, therefore, was not privileged as to such occasions; (c) whether the defense of truth was proved; and (d) whether the publications were made in good faith and without malice so as to fall within the protection of conditional privilege. We shall discuss these issues in the order enumerated.

(a) We need not reconsider appellants' assertion that the trustees' report, which was involved in the second cause of action, was not libelous per se. In our previous decision in this case, Ward v. Painters' Local Union, supra, 41 Wash.2d at page 865, 252 P.2d at page 256, we said of the report

'* * * The communication could have had but one imputation to the union members and the bonding company. It was libelous per se, and the court's instruction was proper.'

This determination became the law of the case and is controlling upon this appeal.

(b) Appellants' contention that the trustees' report was privileged as a matter of law, and their exception to instruction No. 8 regarding the privileged character of the report, are without merit. There was some evidence which, if believed by the jury, would justify the conclusion that the libelous trustees' report was mimeographed and handled by one or more persons who were neither members nor employees of the appellant union. There was also evidence that the union's mailing list included the names of persons suspended from the union, and who, under the constitution, had no voting rights in appellant union. The significant portions of the trial court's instruction No. 8 read:

'With regard to said Exhibit 5, which has been referred to as the 'Trustees' Schedule' (the publication, if...

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  • In re Francis
    • United States
    • Washington Supreme Court
    • November 18, 2010
    ...more than one attempted robbery charge under Tvedt. The former argument was not made and is waived. See Ward v. Painters' Local Union No. 300, 45 Wash.2d 533, 541, 276 P.2d 576 (1954) (an argument not raised is waived). Even if it had been raised, misunderstanding the charges does not creat......
  • Barron v. Safeway Stores, Inc.
    • United States
    • U.S. District Court — District of Washington
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    ...the latter to use such means as are reasonable under the circumstances to avoid or minimize the damages." Ward v. Painters' Local Union, 45 Wash.2d 533, 542, 276 P.2d 576 (1954). The person wronged is barred from recovering for any item of damage which could thus have been avoided. Id. Wash......
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    ...cannot recover damages which could reasonably have been avoided by reasonable efforts and expenditures, Ward v. Painters' Local Union 300, 45 Wash.2d 533, 542, 276 P.2d 576 (1954), this action is for an unpaid debt, not The trial court correctly determined Metropolitan had no duty to mitiga......
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    ...position of the insurer and, thus, the risk of loss."). 10. Br. of Resp't at 14. 11. CP at 50. 12. See Ward v. Painters' Local Union. No. 300, 45 Wash.2d 533, 542, 276 P.2d 576 (1954) (if one person commits tort, breach of contract or other legal wrong against another, latter must use reaso......
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