holding that an action in contract is for the breach of a duty arising out of a contract either express or implied, while an action in tort is for a breach of duty imposed 8 by law.
How later courts described this case
- holding that an action in contract is for the breach of a duty arising out of a contract either express or implied, while an action in tort is for a breach of duty imposed 8 by law.
- noting that "while the general distinction between actions in contract and in tort is clearly defined and well understood, it is often difficult to determine whether a particular action is the one or the other”
- “Employers should have the right and the freedom to make their employment decisions without interference unless they discriminate against some protected group which might otherwise be unfairly denied employment.”
- it is sufficient if the obligation or liability grows out of a written instrument, not remotely but immediately, or if the written instrument acknowledges a state of facts from which by fair implication, the obligation or liability arises
Written by the judges who cited it.
Distinguished
Distinguished by Las Mendozas, Inc. v. W. H. Powell, 368 F.2d 445 (1966)
We do not believe that International Printing Pressmen and Assistants’ Union of North America v. Smith, 145 Tex. 399, 198 S.W.2d 729 (1947) is contrary to these cases as it is clearly distinguishable on its facts.
The opinion
On Motion for Rehearing.
ALEXANDER, Chief Justice.
Upon motion for rehearing it is argued with much force that plaintiff’s action for the damages suffered by him is in tort, and not on contract. In view of this argument, we have re-examined the subject, but have reached the same conclusion as that announced in our original decision.
Undoubtedly, one has a right to dispose of his labor in any manner satisfactory to himself, so long as he does not violate the law or his contractual relation with others, and for any unlawful interference with that right he has a common law action in tort for the damages suffered by him. Brennan v. United Hatters of North America, etc., 73 N.J.L. 729 , 65 A. 165 , 118 Am. St.Rep. 727, 9 Ann.Cas. 698. And if plaintiff had brought this action solely for damages for interfering with his common law right to labor, we would have no difficulty in reaching the conclusion that the action was in tort. But that is not the nature of plaintiff’s suit.
Plaintiff alleged in part as follows: “Plaintiff did execute a written contract of application for membership in the International Printing Pressmen and Assistants’ Union of North America through their subordinate union known as Fort Worth Printing Pressmen and Assistants’ Union, No. 47, said subordinate union being the servant, agent and employee of defendant union herein. * * * That in return for the obligation and promises that were contained in the application and obligation executed by Plaintiff herein to the Defendant union, the Defendant did in return for such consideration, accept Plaintiff into membership and did deliver a certificate of membership, granting to Plaintiff, the friendship and good offices of all unions under the jurisdiction of the International Printing Pressmen & Assistants’ Union of North America, and particularly the benefits under the constitution, laws and scale of wages of the Defendant Union.” After alleging that the union had unlawfully expelled him, he further alleged: “That because of the acts of the Defendant, their servants, agents, and employees and the subordinate union, Plaintiff lost his standing as a union man, and the benefits belonging to him and received by him as a union man and a member of Local No. 47, and the benefits as provided for the members by the Defendant Union, and Plaintiff lost all benefits to which he was entitled under the constitution and by-laws of the Defendant corporation, including insurance, membership of the said Local No. 47: Plaintiff would show that his suspension and fine was made with improper motives and made upon untenable grounds, and that such suspension has caused this Plaintiff great mental suffering and humiliation by reason of the motives by the Defendant, their servants, agents, and employees and subordinate union. * * * and that by reason of the unlawful, illegal acts of the Defendant, their agents, servants, and employees and subordinate union and by reason of the breach of contract hereinabove referred to by the Defendant through their agents, servants, and employees, Plaintiff has suffered actual damages in the sum of $8,-050.57.”
From the above it is clear, we think, that plaintiff’s action is not one merely for damages for unlawful interference with his common law right to labor. He does not seek to recover damages for breach of any right that accrued to him by operation of law. He asserts a contract,
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evidenced by the constitution and by-laws, which entitled him to 'membership iii the union with all of the benefits incident thereto, and charges that his unlawful expulsion from the union constituted a breach of that contract. He seeks to recover the damages which he suffered as a result of his expulsion from the union in violation of the contract. In the case of St. Louis, Southwestern R. Co. v. Thompson, 102 Tex. 89 , 113 S.W. 144 , 19 Ann.Cas. 1250, this Court held that a member of the union could recover damages suffered by him as the result of the wrongful expulsion therefrom. In our opinion the action was upon contract and is regulated by the four years’ statute of limitation.
The motion for rehearing is overruled.
SMEDLEY, HICKMAN, SLATTON, and BREWSTER, JJ., dissenting.