Leahy v. Smith

137 Cal.App.2d Supp. 884 (1955) MICHAEL W. LEAHY, a Minor, etc., Appellant,

v.

DONALD C. SMITH, Respondent.

California Court of Appeals.

Nov. 28, 1955. Jones & Jones for Appellant.

Gordon P. Shallenberger for Respondent.

Before Shaw, P. J., Bishop, J., and Patrosso, J.

THE COURT.

The sole question presented by this appeal by the plaintiff from the judgment of nonsuit is whether the plaintiff, a nonunion employee of defendant, is entitled to rights as a third party beneficiary under two collective bargaining agreements entered into between the union and the defendant employer. Plaintiff does not claim to be a union member and holds only a "work permit" card issued by the union.

The right of a union member to recover as a third party beneficiary under such an agreement has been recognized in California (Sublett v. Henry's etc. Lunch (1942), 21 Cal.2d 273, 275 [131 P.2d 369]; Division of Lab. Law Enforcement v. Dennis (1947), 81 Cal.App.2d 306, 308 [183 P.2d 932]; MacKay v. Loew's, Inc. (1950, C.A.9th), 182 F.2d 170, 172, cert. den. 340 U.S. 828 [71 S.Ct. 65, 95 L.Ed. 608]). But whether a nonunion employee is such an intended beneficiary has not been decided.

"If the contract purports to be made for the benefit of all employees, both members and nonmembers of the union, an action for its breach may be maintained by one who is not a member of the union." (56 C.J.S. 270, Master and Servant, 28(83) (b).) And in 18 American Law Reports 2d, at page 370, appears the statement: "It has been generally held that a collective labor agreement between an employee and a labor union for the benefit of all the employees, or a class of employees, may be enforced by an individual employee, within the scope of the agreement, even though he is not a member of the contracting union." This same criterion is laid down by the cases from other jurisdictions which have discussed the problem. (Yazoo & M. V. R. Co. v. Webb (1933), 64 F.2d 902, 904; Yazoo & M. V. R. Co. v. Sideboard (1931), 161 Miss. 4 [133 So. 669]; Gregg v. Starks (1920), 188 Ky. 834 [224 S.W. 459]; Coyle v. Erie R. Co. (1948), 142 N.J.Eq. 306 [59 A.2d 817]; rev'd on other grounds 1 N.J. 350 [63 A.2d 702].) As said in Yazoo & M. V. R. Co. v. Sideboard, supra, at page 671: A nonunion member may recover "(1) When the terms of the contract are expressly broad enough to include the third party either [137 Cal.App.2d Supp. 886] by name or as one of a specified class, and (2) the said third party was evidently within the intent of the term so used, the said third party will be within its benefits, if (3) the promisee had, in fact, a substantial and articulate interest in the welfare of the said third party in respect to the subject of the contract."