4-QUASI JUDICIAL PROCEEDINGS-WAIVER OF IRREGULARITY. union with violation of its regulations, attendWhere complainant, being charged by labor ed hearings of the committee on certain days and consented to their procedure on those days, this was not a waiver of their irregular proceedings on other days.

represented by counsel, a number of wit-12. TRADE UNIONS
nesses being examined in behalf of each of
the parties. At the close of the testimony
there occurred a somewhat lengthy colloquy
between counsel and court, covering some
30 pages of the transcript. From a careful
examination of this discussion it is evident
to us that the trial court, in denying the
petition, was largely influenced by its de-
sire to bring about the reconciliation of the
parties, and that such desire was further
stimulated by the fact that there were two
children who might be, in some way, dis-
advantageously affected by the granting of a
divorce.

[Ed. Note. For other cases, see Trade Unions, Cent. Dig. § 3; Dec. Dig. 4.] 3. TRADE UNIONS 4-ACTION AGAINST—EV

IDENCE.

Evidence held to show that a labor union, in disciplining a member, held its sessions on while he was engaged in court. Sunday without notice to him, and on week days

[Ed. Note. For other cases, see Trade Unions, Cent. Dig. § 3; Dec. Dig. 4.] 4. TRADE UNIONS 4-QUASI JUDICIAL PRO

CEEDING-PROTEST.

4.]

4-QUASI JUDICIAL PROCEEDING CURE OF ERROR.

of its disciplinary proceedings, asked for by the member on trial because of his occupation in court, and continued hearings in his absence, their summons to him to appear to complete unexpected break in court proceedings did not his testimony upon an occasion caused by an cure error.

Where a labor union refused continuance

[1] It cannot be denied that an amicable adjustment of all differences which may arise between parties, whatever the relationWhere a labor union, in disciplining a memship may be, would be most desirable, and him, he could not be expected to protest against ber, held sessions on Sunday without notice to that a reconciliation between married reo-something of which he had no notice. ple, who have unfortunately become estrang- [Ed. Note. For other cases, see Trade Uned, would be most expedient, especially in ions, Cent. Dig. § 3; Dec. Dig. cases where the welfare of children might 5. TRADE UNIONS be involved. We are aware that in divorce cases courts sometimes withhold the entry of a decree for a brief period in order to give the parties an opportunity to come to a reconciliation. There are doubtless some cases affording a reasonable prospect of reconciliation and where such a course might be justified, though it might not be justified in other cases where the futility of any efforts in that direction would be apparent from the evidence. The questions presented to the court in a suit for divorce are questions of law under our statute, and they must be determined by the evidence when the time arrives for such determination. To go beyond this would be to exercise a paternal care which would not be justifiable in a court of law, charged with the construction and application of a specific statute.

[2] We feel from our examination of the case before us that the trial court, in its laudable desire to see the parties reconciled, failed to give to the testimony that consideration to which it was entitled. We think the petitioner's exception should be

sustained.

The case is remitted to the superior court,

with direction to give the petitioner a new trial.

(40 R. I. 34)

FALES v. MUSICIANS' PROTECTIVE UNION, LOCAL 198, AMERICAN FEDERATION OF MUSICIANS, et al. (No. 322.) (Supreme Court of Rhode Island. Feb. 14, 1917.)

1. TRADE UNIONS 4-QUASI JUDICIAL PRO

CEEDINGS-APPEAL FROM.

The decisions of a labor union in disciplining members are quasi judicial; and, where proceedings are not according to rules, or not in good faith, or contrary to law, the member need not exhaust his remedies within the society before applying to the courts.

[Ed. Note. For other cases, see Trade Unions, Cent. Dig. § 3; Dec. Dig. 4.]

4.]

[Ed. Note. For other cases, see Trade Unions, Cent. Dig. § 3; Dec. Dig. 6. TRADE UNIONS

4-QUASI JUDICIAL PRO

CEEDING-VALIDITY. ber failed to give proper notice of its sittings, Where a labor union in disciplining a memheld them on Sunday, failed to adjourn when the member was engaged in court and otherwise failed to give him a fair trial, such proceedings exempted from exhausting appeal within the held to be void, and the member was thereby society before applying to the courts.

[Ed. Note. For other cases, see Trade Unions, Cent. Dig. § 3; Dec. Dig. 4.]

Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Action by Warren R. Fales against the Musicians' Protective Union, Local 198, American Federation of Musicians, and others.

Judgment for plaintiff, and defendants appeal. Affirmed and remanded.

Boss & Barnefield, of Providence, and William P. Maloney, of New York City, for appellants. Wilson, Gardner & Churchill, of Providence, for appellee.

JOHNSON, C. J. This is an appeal by all of the named respondents in the above-entitled bill of complaint from a decree of the superior court granting relief to the complainant. The American Federation of Musicians is a voluntary, unincorporated association. Under its constitution and by-laws it is vested with power to establish local unions throughout the United States and Canada, and to decide all matters pertaining to the jurisdiction of the affiliated local unions.

his rights in the premises, and without waiving
his objections hereinbefore set forth.
"Warren R. Fales."

To this the chairman of the committee, on

behalf of the committee, answers:

"You have not been and will not be denied the opportunity to be confronted with the witnesses; you will not be denied the opportunity to examine all the evidence, documentary or otherwise, which will be given against you; you will not be denied the opportunity to give evidence in rebuttal. The only exception to the request which you make upon the traveling band committee is taken against being represented by counsel, as the laws of the American Federation of Musicians itself do not provide that a member should have a right to make such a request, the committee itself is not represented by counsel. The American Federation of Musicians reserves to itself as a volunteer organization the right to try its own members without counsel being present either for one side or the other.

"Mr. Fales: Do you want the stipulations under which I became a member of the union? "Mr. Weber: Are you ready to answer the traveling band committee in the charges against you?

"Mr. Fales: I am."

The trial began, and the complainant testified. After question 80 the transcript reads: "Mr. Fales states that he will be obliged to leave the hearing at this time.

"Mr. Weber: If you can't stay, we shall give you an opportunity to peruse the evidence of all the members. You can answer the same this afternoon, or to-morrow morning, or to-morrow afternoon. (To this Mr. Fales makes answer that he doesn't care what we do, and he cannot stay.)"

Thereupon the traveling band committee ordered the following notice sent to Mr. Fales: "Providence, R. I., March 24, 1913. "Mr. Warren R. Fales, Providence, R. I.— Dear Sir and Brother: You are hereby notified that the traveling band committee of the American Federation of Musicians will continue its session up to and including Tuesday, March 25th for the special purpose of giving you another opportunity to appear before it and conclude your testimony in the case wherein you, as a defendant have entered an appearance before it on March 21, 1913. The committee hereby calls your attention to the fact that you have not been finally excused from giving testimony and that if you fail to conclude your testimony, you do so at your own risk.

"The committee will meet at Building Trades Council Hall, 193 Westminster street, room 10, Tuesday, March 25, at 10 a. m. "By order of the committee:

He then answered two more questions. Later in the day he returned, was notified to cross-examine Lozzi, and a summary of the testimony of witnesses who had testified in "Joe. N. Weber, Chairman." his absence was read to him. Fales was exThat day, Monday, March 24th, the testiamined by the chairman and by Mr. Osten-mony of one witness, Comprone, was taken. dorf. He testified in answer to some of the witnesses. The testimony of John Renzi was read to him. The complainant then presented to the committee a doctor's certificate, stating that Mrs. Fales was seriously ill, whereupon the committee adjourned to meet Saturday, March 22, 1913, at 10 o'clock a. m. The following appears from the transcript:

"Saturday, March 22, 1913. Mr. Fales appeared. Upon question, he was informed by Mr. Weber, chairman of the committee, that as a matter of course he will have the opportunity of becoming informed of all the testimony given by all the members of the Federation, who testify before the traveling band committee, and have the further opportunity to give testimony in rebuttal in sufficient time so he will have his testimony on the record the same as the other members. Mr. Fales then offered the following, and requested it be placed on the records of the

case:

Tuesday, March 25th, the testimony of Hazard was taken. On page 226 of the transcript of testimony taken before the traveling band committee, on Tuesday, March 25th, the following appears:

"It was reported to the committee that Warmorning, March 24, 1913, in the case whereof ren R. Fales did not appear in court, Monday he spoke in his notice to the committee on March 24th; that therefore his reasons that he could not appear before the committee for the reason that he had to appear in court, were not borne out by the facts. The committee is further informed that the case would continue in court, however, during Tuesday, March 25th, and therefore the committee decided to send to Mr. Fales the following final notice:

"'Providence, R. I., March 25, 1913. Dear Sir and Brother: You are hereby notified "Mr. Warren R. Fales, Providence, R. I.that the traveling band committee of the American Federation of Musicians will continue its session up to and including Wednesday, March 26th for the special purpose of giving you another opportunity to appear before it and conclude your testimony in the case wherein you, as a defendant have entered an appearance be

"March 22, 1913. ""To the Traveling Band Committee of the American Federation of Musicians: "I respectfully request a postponement of the hearing on the ground that my wife is seriously ill and it is impossible for me on this ac-fore it on March 21, 1913. The committee herecount to attend the hearings.

'Warren R. Fales. ""This is to certify that Mrs. Warren R. Fales' condition is such, as to require Mr. Fales' constant attendance at home.

by calls your attention to the fact that you have not been finally excused from giving testimony and that if you fail to conclude your testimony or evade appearing before the committee or in any other way place obstacles in the way of the

defense in the charges pending against you before the committee, you do so at your own risk. "The committee will meet at Building Trades Council Hall. 193 Westminster street, room 10, Wednesday, March 26, 1913, at 10 a. m. and at 2 p. m.

"By order of the Committee:

"Joe N. Weber, Chairman.' As to the statement in the above record that the inability of Mr. Fales to appear before the committee on Monday for the reason that he had to appear in court was not borne out by the facts, it is to be noted that Mr. Fales testified in the trial in the superior court that the Blumenberg Press Case went to trial on Monday, March 24th. Mr. Weber, the chairman of the traveling band committee, testified on cross-examination as follows (page 142):

"Q. You were satisfied that he did have that case to start Monday? A. Yes; we found he had a case to start on Monday, which did not start on Monday. Q. You mean to state that the case didn't start Monday? A. It wasn't tried throughout the entire day of Monday. Q. It started on Monday? A. It may have. Q. Don't you know it did? A. I was informed they did. I wasn't in the courtroom. Q. You were informed that it did start that day? A. Yes, sir."

The statement that the case of Blumenberg Press v. Warren R. Fales did not start on Monday, March 24th therefore rests entirely on the record of Tuesday, March 25th that: "It was reported to the committee that Warren R. Fales did not appear in court Monday morning, March 24, 1913, in the case whereof he spoke in his notice to the committee on March 24th."

The following appears on pages 229-231, Tr. T. B. C.:

"Wednesday, March 26, 1913. "Meeting was called at 10 a. m. Warren R. Fales failed to appear. After the committee waited for some time, the following document was received from Warren R. Fales:

""Providence, R. I., March 26, 1913. ""To the Traveling Band Committee of the American Federation of Musicians: "Dear Sirs: I hereby request a postponement of the hearings on charges pending against me before your committee owing to the fact that I shall be engaged all day to-day, Wednesday, March 26th, in the preparation of proofs with counsel in the case now pending in the superior court of the Blumenberg Press v. Warren R. Fales, et al.

per instructions of the committee, that the committee would meet again at 2 p. m. on March 26, 1913, to give him (Warren R. Fales) another opportunity to appear before the committee. Mr. Gamble also reported that he spoke to Warren R. Fales at 11:20 a. m., March 26th, about the matter and that said Warren R. Fales was then not in consultation with an attorney, and admitted to him (Gamble) that said consultation would not take place until later in the day; that he (Warren R. Fales) may appear before the committee if he could get done with his other affairs in sufficient time to do so. committee closes hearing of testimony, and "Warren R. Fales failed to appear, and the takes case under advisement."

On February 2, 1914, the following notices were sent to Mr. Fales:

"New York, Feb. 2, 1914. "Mr. W. R. Fales, Riverside, R. I.-Dear Sir and Brother: I beg to advise you that the traveling band committee of the American Federation of Musicians has found you guilty of violating the laws of the Federation as charged, and has imposed a fine of $1,000 upon you. have the right to appeal from this verdict of the traveling band committee to the next convention, under conditions as set forth in the laws of the Federation.

"Fraternally yours,

You

Joe N. Weber."

"New York, Feb. 2, 1914. "Mr. W. R. Fales, Riverside, R. I.-Dear Sir: I beg to inform you that the traveling band committee of the American Federation of Musicians, in conformity with the laws of the Federation, has found you guilty of giving false testimony before it in the case wherein you had been charged with violating the laws of the Federation during summer season of 1911, and has expelled you from the Federation. You have the right to appeal from the verdict of the traveling band committee to the next convention of the American Federation of Musicians. your appeal be sustained, it will carry with it your immediate reinstatement provided no unpaid fines are standing against you. "Yours truly,

Should

Joe N. Weber."

There was evi

At the trial in the superior court the complainant introduced testimony tending to show that members of the union refused to work with him because of the order of expulsion, and that therefore he could not lead the American Band on some occasions, and that he lost some engagements. dence that the band took some engagements with another leader. The presiding justice entered a decision for the complainant, and subsequently a decree was entered, granting "I further request a postponement of all hear-substantially the prayer of the bill. From ings in the above matter until the conclusion this decree the defendants claimed an appeal. of said case.

"Respectfully, Warren R. Fales.'" "Thereupon the committee decided to send a notice to Warren R. Fales, informing him that the committee meet again at 2 p. m., and will await his appearance at that time. The chairman of the committee asked whether a member of the Federation was on the premises, and, after being informed that Mr. Thomas F. Gamble was outside of the hall, he, with the concurrence of the committee, called in Mr. Gamble and requested him to call on Mr. Warren R. Fales at once and inform him that the committee would meet again at 2 p. m. and await his appearance at that time. The committee then adjourned until 2 p. m. Wednesday, March 26, 1913, 2 p. m. * * *

"Thomas F. Gamble sworn. Mr. Thomas F. Gamble, after being duly sworn, reported and said that he had called on Warren R. Fales at his office, for the purpose of informing him, as

Respondents filed nine reasons of appeal. Of these respondents' counsel say in their brief:

"In effect the foregoing reasons of appeal claim that the determination of the presiding justice of the superior court upon the facts was not warranted by the testimony, and that his application of equitable principles to the facts as he found them was erroneous.'

In his decision the presiding justice said: "We think the undisputed testimony shows that the complainant was tried by the respondents on certain charges, and that said trial was conducted against his protests upon a Sunday and upon certain week days while the complainant was engaged in a trial of a case before the superior court in this state. Under these circumstances we think the trial before the respondents should have been continued, and that said trial should not have continued against com

plainant's protests while he was engaged in a, appeal from an inferior to a superior tribunal trial of a case before the superior court. Pepin v. Société St. Jean Baptiste, 24 R. I. 555, 54 Atl. 47, 60 L. R. A. 626. We do not think that the superior court is under obligation to postpone a trial of its cases because of the engagement of parties in a quasi judicial tribunal of inferior jurisdiction. Abbott's Trial Brief, Civil Jury Trials (2d Ed.) p. 19. We think, therefore, that the findings of the respondents upon said trial were void. This applies as a necessary consequence to the action of said tribunal in expelling complainant, because of alleged false testimony, without further hearing. Hutchinson v. Lawrence, 67 How. Prac. (N. Y.) 38. Our finding that said proceedings were void exempts the complainant from exhausting his remedy within the society itself by any appeal. We think the complainant is entitled to a decree.'

Defendant's counsel contend that by the great weight of authority it is the rule that the remedies within the organization must be exhausted before resorting to a civil court for relief from an order of expulsion or a disciplinary decision. In 24 Cyc. 827, it is said: "The decisions of a labor union in admitting, suspending, or expelling members are of a quasi judicial character. In such cases the courts will not interfere except to ascertain whether or not the proceedings were in accordance with the The question before us therefore is, Did rules and laws of the union, and whether or the presiding justice err in holding that the not the proceedings were in good faith, or if there was anything in the proceedings in viola-proceedings were void? Respondent's countion of the laws of the land." sel argue that: