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, 328 S.W.2d 739

HAMILTON', Justice. 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. 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. Lanham 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 fqrther 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 coprin-cipals 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 he 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.1’ 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 same idea is expressed in Taxicab Drivers’ Local Union No. 889 v. Pittman, Okl., 322 P.2d 153, which is similar in some respects to the present case.

There the plaintiff had signed a petition to the international union making certain accusations against the officers and business manager of the local union. The international union made an investigation but took no action against the officers of the local union. Charges were thereafter filed against the plaintiff alleging that he had violated the provisions of the union constitution making it an offense to abuse fellow members.

After a hearing which the court held was so unfair as to constitute no trial at all, the plaintiff was found guilty and sentenced to pay a fine and suspended from union activities for one year. Apparently he was not expelled from the union. On the next dues-paying date, the plaintiff tendered his dues but refused to pay the fine, and the union secretary declined to accept the dues unless the fine was also paid.

Later the plaintiff was suspended from work by his employer at the request of the union pursuant to the provisions of a working agreement which required that all employees be in good standing with the local union. In the trial court the plaintiff was awarded recovery of actual and exemplary damages against both the local and the international union. The judgment against the latter was reversed on appeal because of defective service of process, but the recovery against the local union was upheld.

In disposing of the contention that the union could not be subjected to liability for the acts of its agents because the plaintiff-member was equally responsible for the wrongful conduct, the court said: “We note, however, that in each of those cases [holding that a labor union or other unincorporated association is not liable to a member for damage caused by the association’s agent] the conduct of the agent was in the’performance of his duty on behalf of the association in some project for which the plaintiff could reasonably expect to benefit just as much as any other member, at the inception of the project * * * Common sense leads inexorably to the conclusion that officers of the Union causing plaintiff to be suspended from work without pay are anything but his agents for that purpose.

The contrary conclusion would smack of flagellantism, an unlikely theory upon which to determine legal liabilities. The use of the agency doctrine under these specific circumstances has no support either in reason or public policy.” The contrary conclusion is not required by the decision in Brotherhood of Railroad Trainmen v. Allen, Tex.Civ.App., 230 S.W.2d 325 (wr. ref.). In that case the union and the railroad had made a contract in settlement of claims for work which the latter had caused to be done by road crews instead of yard crews as required by the working agreement.

By the terms of the settlement, the railroad was to pay a yard day to any available yard crew that would have been called to perform the work. Two members of the union then checked the records and advised the railroad which employees were entitled to receive the money, and the funds were distributed among those so designated, about one-third being paid to extra men and two-thirds to regular men. Each of the plaintiffs was an extra man and was paid part of the award.

They later brought suit against the railroad and the union, contending that they should have received practically all of the money that went to the regular men. The plaintiffs there alleged that the actions of the railroad and the union were fraudulent in that they willfully and knowingly contrived to benefit one group of employees at the expense of another group and that the collaboration of such defendants was a conspiracy against plaintiffs’ rights, but the verdict does not support either of these theories. The railroad was dismissed prior to the trial, and no conspiracy issue was submitted.

While the jury found, among other things, that the action of the union in designating others to receive the money was a fraud on the plaintiffs, the term “fraud” was defined as “any act, omission or concealment, which involves a breach of a legal duty, trust or confidence, justly imposed, and is injurious to another, or by which an undue and unconscientious advantage is taken of another * * The element of wrongful motive or intent was not included in the definition, and the answer to Special Issue No. 12 was simply a finding of legal or constructive fraud.

The union representatives in the Allen case undoubtedly were acting for the plaintiffs’ benefit in making the settlement and in checking the records to ascertain how the money should be distributed. As a result of these activities, the plaintiffs were designated to and did receive part of the funds. Any idea that the agents consciously worked against the plaintiffs’ interests is effectively dispelled by the jury’s determination that the distribution of the money was proximately caused by the negligent failure to check all available records.

As the controversy reached the appellate court, therefore, it was simply a case of legal, but not willful, fraud and discrimination resulting from negligence in performing services for the benefit of the plaintiffs and other union members. It was proper under these circumstances to impute the wrongful conduct to the plaintiffs and hold that they could not recover from the union for the dereliction of the joint agents. The legal responsibility of an unincorporated association for the wrongful conduct of its agents should not be substantially different from that of an ordinary principal.

The general rule is one principal is not civilly liable to another for the tortious acts of an agent who acts for both parties with their consent. He is responsible, however, where there is collusion with the agent, active participation in the wrongful act, or the same is otherwise authorized or ratified. See Ringer v. Wilkin, 32 Idaho 330, 183 P. 986; Boss v. Tomaras, 251 Mich. 469, 232 N.W. 229; Fuchs v. Leahy, 321 Mo. 47, 9 S.W.2d 897; 3 C.J.S. Agency § 260. This was recognized in Blair v.

Baird, 43 Tex.Civ.App. 134, 94 S.W. 116, 121, (wr. dis.), where the court pointed out that “by the terms of the contract, O’Neal was the joint agent of the parties, and, unless it had been shown that he had conspired with appellant Blair to defraud appellees, appellants would not be responsible for any misconduct on the part of O’Neal.” The present controversy has not been tried on the merits, and we do not know what the evidence will disclose. According to the petition, it was Lanham’s duty to place the members of the union with their various job opportunities.

As long as he attempted in good faith to discharge that responsibility in a proper manner, his activities were calculated to benefit the respondent as much as any other member. If it appears that the denial to respondent of an opportunity to work on the Republic Bank Building, even though wrongful, resulted merely from negligence, inadvertence or mistake on the part of Lanham while trying to perform his duties fairly and impartially, petitioners are not legally responsible for respondent’s damages. Brotherhood of Railroad Trainmen v. Allen, supra.

Under the pleadings, however, respondent is not confined to proof of negligence, inadvertence or mistake. He alleges that upon his arrival in Dallas, Lanham at first refused to accept his card; that when the card was later accepted, he was cursed and abused by Lanham and informed that the latter would see to it that he was never allowed to work on the bank job; that he was threatened with expulsion from the union if he continued to complain of this treatment; and that the acts of the defendants- were willful and malicious and constitute a conspiracy.

These allegations will support proof that respondent was willfully denied a job opportunity to which Lanham knew he was entitled under the rules and procedures established by petitioners for allocating work among their members, and that petitioners either conspired with Lanham to bring this about or otherwise authorized or ratified his wrongful conduct. If these are the facts, we think the case represents another exception to the general rule mentioned above, and that respondent is entitled to maintain this suit against petitioners.

It would be quite incongruous to say that the business manager was acting as agent for respondent in knowingly depriving him of all rights and privileges of union membership in so far as the Republic National Bank job is concerned. We agree with the Court of Civil Appeals that the suit should not have been dismissed on the pleadings in their present form, and its judgment is affirmed. SMITH, J., concurs.