44 Wn.2d 15, WEBSTER MINCH, Respondent, v. LOCAL UNION NO. 370, INTERNATIONAL UNION OF OPERATING ENGINEERS, et al., Appellants
[No. 32494. Department Two.      Supreme Court      December 28, 1953.]
WEBSTER MINCH, Respondent, v. LOCAL UNION NO. 370,
                INTERNATIONAL UNION OF OPERATING ENGINEERS,
                          et al., Appellants.«1»

"A challenge to the sufficiency of the evidence, a motion for nonsuit, a motion for a directed verdict, or a motion for judgment notwithstanding the verdict admits the truth of the evidence of the party against whom the motion is made and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the moving party and in the light most favorable to the opposing party. [citing cases.] When confronted with such a situation it becomes the duty of the court to be guided by the above rule, rather than to consider all of the evidence presented during the trial." (Italics ours.)

[3] The evidence was conflicting as to pertinent factual questions. With this in mind, merely to quote the aboveindicated rule is sufficient to show that the trial court did not err in denying the motion for a directed verdict and that the pertinent factual questions were properly submitted to the jury. We might go further and say that it is for the resolution of such factual issues that juries are intended and ideally suited. Given the theory of the plaintiff's action - a civil conspiracy - the conflicting evidence and the fact that often such a charge must be proved by circumstantial rather than by direct evidence, as we have already said, it was for the jury to decide whether a cons piracy existed. Similarly, it was not error for the court to deny defendants' motion for judgment notwithstanding

24 MINCH v. LOCAL UNION NO. 370. [44 Wn. (2d)

the verdict. Nor can it be. said that the court abused its discretion in denying defendants' motion for a new trial.

What we have just said disposes of the initial three assignments of error. However, we think it is desirable to comment upon various arguments by appellants concerning the union trial and the claim that Minch was suspended for cause pursuant thereto. Appellants claim that the trial was fair, after due notice for just cause; that, by contract, each member of a union assents to being suspended or expelled for activities detrimental to the purposes of the organization; that the union trial was a matter of internal discipline, not a de novo matter in the trial court, or here, and hence one into which the trial court should not have interjected itself; that Minch abandoned his union appeal, has not exhausted his union remedies (as he should be required to do before he can sue for damages); and that, while the sentence pronounced by Burget used the word "expel," actually, the conduct of both sides of the union controversy shows that each considered the union's action as to Minch as a suspension rather than an expulsion.

To discuss at length the various principles of labor union law cited by the appellants, would protract this opinion unduly. Any lengthy discussion can be obviated by reference to several basic propositions of labor union law.

[4] Undoubtedly, a union member just as a member of any other voluntary association consents to be bound by union rules and to be disciplined for infractions thereof. Dangel and Shriber, Labor Unions, 195, § 171. But the mode of discipline as prescribed by the union's organic law must be followed. Dangel and Shriber, supra, 199, § 175. Disciplinary proceedings must be prosecuted in good faith before they can be said to be conclusive on the courts in subsequent actions. Dangel and Shriber, supra, 203, § 178. Furthermore, while a member of a union must exhaust his union appellate remedies before the courts will interject themselves into controversies between him and his union (Constantino v. Moresehi, 9 Wn. (2d) 638, 115 P. (2d) 955), it is nevertheless a question of fact for the jury as to

Dec. 1953] MINCH v. LOCAL UNION NO. 370. 25

whether those remedies have been exhausted. Dangel and Shriber, supra, 215, § 187.

Considering these rules, again it cannot be said that the court erred in submitting to the jury the issues raised by the evidence. When considered in isolation and removed from the background evidence, it might be said that the union proceedings were prosecuted in good faith, and, consequently, should be conclusive upon courts in subsequent proceedings; however, there is more to the matter than is indicated by such a narrow approach. It must be remembered that the background evidence, among other things, relating to animosity between Minch and the defendant officers, is susceptible of an interpretation that a conspiracy did exist and that it resulted in Minch's expulsion from the union. In this same connection, giving due weight to the evidence of defects in the union trial and the fact that Minch was expelled on less than the number of votes necessary for expulsion under the union constitutional provisions and giving due weight to the evidence that after payment of his fine and current dues Minch was not fully reinstated to union membership pending the outcome of his appeal, the inference that he was railroaded and conspired against becomes even stronger. As we have said twice before, all of these factors were for the jury's consideration. It was for the jury to decide from the conflicting evidence whether or not there had been a conspiracy against Minch. See 21 A. L. R. (2d) 1387.

We are of the opinion that there is merit to several of the appellants' assignments of error which go to the issue of damages.

[5] First, however, with regard to the ruling of the court permitting a blackboard demonstration before the jury to show a theoretical computation of damages or loss of earnings, we do not think it can be said that the demonstration was error. The rate of pay of a power-shovel operator was multiplied by the number of hours worked weekly, by the number of weeks in one year. This demonstrated the maximum yearly earnings possible. Obviously, it assumed maximum or full employment. The demonstration was

26 MINCH v. LOCAL UNION NO. 370. [44 Wn. (2d)

based on evidence in the record. Appellants similarly might have used a blackboard to demonstrate yearly earnings at a figure less than maximum, based upon evidence in the record adduced by appellants, from which it might have been inferred that employment possibilities for Minch in the area were less than maximum during the period involved. The demonstration was allowable in the discretion of the trial court.