International Printing Pressmen & Assistants' Union v. Smith

While I doubt that the facts of this case establish petitioner's liability on any theory urged by Smith, I am convinced that his cause of action is barred by limitation under Art. 5526, R.S., 1925, as a tort action.

The majority opinion holds that his demand is not barred because it is founded upon a contract in writing, under Art. 5527, id., which provides that "actions for debt where the indebtedness is evidence by or founded upon any contract in writing" shall be commenced and prosecuted within four years after the cause of action shall have accrued.

While recognizing the rule announced in Hatcher v. State,125 Tex. 84, 81 S.W.2d 499, and Cowart v. Russell, 135 Tex. 562,144 S.W.2d 249, that to make the four-year statute applicable "the written instrument relied upon must itself contain a contract to do the things for the nonperformance of which the action is brought," the majority opinion seeks to square this case with that rule on the theory that the written instrument need not contain an express promise to do that for the nonperformance of which the action is brought, it being sufficient if the obligation grows out of a written instrument, "not remotely but immediately," or if the instrument acknowledges a state of facts from which the obligation may be fairly implied. In an effort to sustain that proposition the opinion quotes from two Missouri cases and one Utah case: Reyburn v. Casey, 29 Mo., 129; M.K. T. Ry. Co. v. Am. Surety Co., 291 Mo., 92,236 S.W. 657; and Bracklein v. Realty Ins. Co., 95 Utah 490,80 P.2d 471, and cites several Texas cases: Robinson v. Varnell,16 Tex. 382; Elder, Dempster Co. v. St. L. S.W. Ry. Co. of Texas, 105 Tex. 682, 154 S.W. 975; Texarkana Ft. S. Ry. Co. v. Houston Gas Fuel Co., 121 Tex. 594, 51 S.W.2d 284; T.P. Coal Oil Co. v. Stuard (Civ. App.) 7 S.W.2d 878 (er. ref.); Sublett v. McKinney, 19 Tex. 439; Fox v. Kroeger, 119 Tex. 511,35 S.W.2d 679; Laredo Elec. Light M. Co. v. U.S. Elec. Lighting Co. (Civ. App.) 26 S.W. 310.

I think the facts in those cases do not support the effort of the majority opinion to square the case at bar with the rule announced in Hatcher v. State and Cowart v. Russell, supra.

In Reyburn v. Casey, Casey had signed an instrument acknowledging that he had received from one Doane for Reyburn $180.00, and it was properly held that the instrument implied a promise by Casey to pay the $180.00 to Reyburn. In M.K. T. Ry. Co. v. Am. Surety Co., the surety company had signed the bond of G. and M., contractors, who had a contract with the railway company to furnish it ties and lumber, to hold the railway company harmless from any labor or materialman claims against G. and M. The court held the surety company liable to the railway company on this bond for a judgment obtained against the railway company by a timber company for ties furnished by the latter to G. and M. to supply the railway company under the contract, because the bond "provides in express terms or by fair implication for the payment of money or property." Despite the lengthy statement by the Supreme Court of Utah in Bracklein v. Realty Ins. Co., quoted in the majority opinion, all it had to decide was whether the grantee in a deed, who therein assumed and agreed to pay an outstanding note and mortgage against the real estate conveyed, was liable upon an instrument in writing. Of course the court held that he was.

This court did say in Robinson v. Varnell, supra, that an action of debt, grounded on a contract in writing, includes all suits brought to recover money for the breach of a contract in writing without regard to the technical distinction between debt and damages. But the writing under consideration was a contract, by the terms of which Robinson agreed to pay Varnell $150. for the hire of a negro slave during the year 1848 and to return the negro on January 1, 1849. Robison so mistreated the slave that he soon ran away and was never found, hence was never returned to Varnell; so this court said, "The present action was brought upon a contract in writing to pay a sum certain in money, technically a debt, and an unliquidated sum for the breach of the contract to deliver specific property, technically damages." Elder, Dempster Co. v. St. Louis S.W. Ry. Co. of Texas, supra, was a suit for damages for failure to deliver 8 bales of cotton covered by a bill of lading issued by the defendant, and it was held that the bill of lading was a contract in writing as contemplated by Art. 5527, supra. Again, when this court said in Texarkana Ft. S. Ry. Co. et al v. Houston Gas Fuel Co., supra, that the word "debt" in the above statute "should not be given a strict, literal interpretation, but * * * should be given such a reasonable interpretation as would give it effect according to the spirit and intention of the statute," the question at bar was whether a suit to recover overcharges on freight shipments made under written bills of lading, which bound the defendant carriers to transport the freight "at the lawful rate," was a suit for debt. Of course this court held that it was. In Sublett v. McKinney, supra, the suit of an accommodation acceptor, who paid a draft, against the maker was held to be grounded upon a contract in writing. In Fox v. Kroeger, supra, the surety on a note paid it, took an assignment and sued the principal upon the note. Laredo Electric Light M. Co. v. U.S. Elec. Lighting Co., supra was a suit for the reasonable value of good shipped and delivered on a written order, and it was held that the law will imply from the writing a promise to pay upon proof of delivery of the goods. The majority opinion's statement as to the holding in T.P. Coal Oil Co. v. Stuard, supra, shows on its face that decision is no authority in support of the majority view. Of course the law imposes no duty on a citizen to develop an oil and gas lease, independent of contract.

The case at bar is essentially an action for wrongful disciplinary action attempted by certain committeemen of the Fort Worth local. In my opinion none of the above cases relate even remotely to such a situation. Nor does respondent cite any case which treats wrongful disciplinary action as a breach of contract.

In Brennan v. United Hatters of North America, 73 N.J.L. 729, 65 Atlantic, 165, 9 L.R.A.N.S. 254, 118 Am. St. Rep. 727, 9 Am. Cas. 698, the facts are in exact parallel with the facts in this case except that the suit was against the local rather than the parent union. Brennan was a member of a local union of the United Hatters of North America and was employed by a named firm in the making of hats. As the holder of a membership card he was authorized under the constitution and by-laws of United Hatters to engage in that work. The vigilance committee of the local union, under pretense that Brennan had violated the laws of the local, found him guilty and fined him $500.00. This action was taken without notice to Brennan and without written charges, as the union rules required. Upon Brennan's refusal to pay the fine, his membership card was withdrawn and the firm for which he was working was compelled therefore to discontinue his employment. Shortly thereafter the local union exonerated Brennan and returned his card, whereupon he went back to his original employment. His suit was to recover what he lost by reason of this inference with his employment. Justice Pitney, later Associate Justice of the Supreme Court of the United States, opens his opinion with the statement, "This is an action of tort." Observing that the common law has long recognized "as a part of the boasted liberty of every citizen the right of every man to freely engage in such lawful business or occupation as he himself may choose, free from hindrance or obstruction by his fellow men saving such as may result from the exercise of equal or superior rights on their part," he holds that "upon both reason and authority" the defendants were liable to Brennan for their unwarranted interference with his common-law right to dispose of his labor as he pleased in pursuing his trade as a hatter; and that Brennan "having sustained damage as a result thereof in losing his place of employment, the present action is maintainable." See, also, Sweetman v. Barrows, 263 Mass. 349,161 N.E. 272, 62 A.L.R., 311, 315; Grand International B. of L. Engrs. v. Green, 210 Ala. 496, 98 So. 569; Local Union No. 65 of Amalgamated S.M.W.J.A. v. Nalty (CCA) 7 Fed., 2d 100.

A person's right to use his own labor in any lawful employment is described by an eminent authority as one of the first and highest of civil rights. "It is a part of every man's civil rights that he be left at liberty to refuse business relations with any person whomsoever. * * * It is also his right to have business relations with any one with whom he can make contracts, and if he is wrongfully deprived of this right by others, he is entitled to redress." Cooley's Law of Torts (3rd Ed.) Vol. 2, pp. 584, 587. Sweetman v. Barrows, supra, describes this right of one to dispose of his labor to the best advantage as a "natural right."

So, whether the right be called a common-law right, a civil right or a natural right, it is one which he enjoys because the law gives it to him; it is in no sense dependent upon contract. It follows therefore that any violation of that right is a breach of a legal duty rather than a breach of a contract.

Of course, within whatever limits the law sets, one may fix conditions and limitations on his right to dispose of his labor as he wills. If he elects, he may contract with others that as a member with them of a labor union he will work only under the terms and conditions prescribed in the constitution and by-laws of the union and that if, in the manner therein prescribed, he is adjudged guilty of violating that constitution and by-laws he will thereby circumscribe or forfeit altogether his right to dispose of his own labor as he chooses. Screwmen's Benevolent Association v. Benson, 76 Tex. 552, 13 S.W. 379. It follows that so long as the union acts under that contract in limiting the right of a member to work, it is guilty of no breach of legal duty, because he has contracted the right away; but if it steps outside the bounds of the constitution and by-laws to interfere with his common-law, natural or civil right to work it is guilty of a breach of legal duty rather than a breach of contract, because he has not contracted that right away.

I think the point is well illustrated in S.L. S.W. Ry. Co. of Texas v. Thompson, 102 Tex. 89, 113 S.W. 144. In overruling the contention there that Thompson was not entitled to recover damages for wrongful expulsion from the Grand International Brotherhood of Locomotive Engineers because he had not prosecuted an appeal to higher authorities within the organization as its rules required before resorting to the courts, this court held that the suit involved both his personal and his property rights and that his right to turn to the courts for redress "exists in favor of all citizens, and could not be adbridged by any association except by the consent of the member."

Again, in Grand International B. of L. Engineers v. Green, supra, the Supreme Court of Alabama, in passing on the same contention, recognizes that the constitution and by-laws of a union are in the nature of a contract binding both on it and its members; that the expulsion of a member, if for cause within the jurisdiction of the tribunal of the union by which it is pronounced, after notice and opportunity to be heard, is conclusive on the courts; but it holds that in that process the unions "must not violate the laws of the land or any inalienable right of their members." Then it observes: "Under no law of the brotherhood or of the land was this a just or sufficient ground for his expulsion, and upon the proof plaintiff was correctly allowed to have verdict and judgment." The opinion clearly recognizes that Green's cause of action was in tort.

In Sullivan v. Barrows, 303 Mass. 197, 21 N.E.2d 275, it is said that the measure of damages for such attempted expulsion and interference with a member's employment is not based upon a breach of contract but upon the direct and proximate results of the wrongful acts of the defendants.

In this case everything the trial committee did was void because they were acting wholly without the constitution and by-laws of the union, hence it offered no limitation whatever on Smith's right to work; so the majority opinion is patently wrong in stating that "all the rights for which he seeks redress arose by virtue of the agreement of the parties." That agreement, as carried in the constitution and by-laws, can be considered only as a matter of inducement as to the wrong done Smith; that is, its only relevancy is to show that it induced or created the situation that occasioned his attempted expulsion from the order and to show that under none of its terms had he forfeited his legal right to work. See Galveston H. S.A. Ry. Co. v. Roemer, 1 Texas Civ. App. 191[1 Tex. Civ. App. 191],20 S.W. 843. "When an action seeks the recovery of damages for injuries to person or to property, it will, for the purpose of the statute of limitations, be considered as one in tort, and allegations as to a contract will be considered merely as a matter of inducement." 28 Tex. Jur., p. 127, sec. 47. This is so because a wrong outside the letter of the contract furnishes the gravamen of the suit. Pecos N.T. Ry. Co. v. Amarillo St. Ry. Co. (Civ. App.) 171 S.W. 1103.

Respondent apparently regarded his cause of action as one in tort; otherwise there appears no reason to plead an alleged agreement with one Thompson, president of the local union, within two years of Smith's attempted expulsion, that if Smith would not file his lawsuit the union would compensate him for his loss of wages. The jury found that no such agreement was made, but if it had found the contrary there would be no question of limitation in this case. Moreover, Smith sued for $10,000 exemplary damages, which are not recoverable for simple breach of contract however malicious the breach. A.L. Carter Lbr. Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629.

I think the trial court correctly disposed of this case because respondent's cause of action is in tort and barred by limitation under Art. 5526, supra. Therefore, I respectfully dissent from the majority opinion.

Justice Smedley, Hickman and Slatton join in this dissent.

Opinion delivered July 17, 1946.

MOTION FOR REHEARING.