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District Court of Appeal, Fourth District, California.


Civ. 2504.

Decided: April 19, 1941

Borton, Petrini, Conron & Borton, of Bakersfield, for appellant. Alfred Siemon and Bennett Siemon, both of Bakersfield (Hartley F. Peart and Howard Hassard, both of San Francisco, of counsel), for respondents.

This is an action to compel the reinstatement of petitioner as a member of the Kern County Medical Association (hereinafter called the defendant) after his expulsion for a purported breach of the rules of that association. Judgment went for defendants and this appeal followed.

The Kern County Medical Association is an unincorporated, voluntary association of the licensed physicians in Kern county who may be admitted to its membership under its rules. It has its own constitution and by–laws and rules for admission and expulsion of its members. It is one of those associations in which membership is not a matter of right, but of grace extended to qualified applicants.

Dr. Joe Smith, the petitioner, had been a practicing physician of Kern county and a member of the association for seventeen years prior to his expulsion in November, 1935. He had been superintendent of the Kern County General Hospital, the county hospital operated by Kern county, for a number of years and in that employment lay the germ of the dispute that led to his expulsion.

Defendant was affiliated with the California Medical Association and the American Medical Association. Individual membership in the state and national associations required membership in the county association. Petitioner had been a member of the three associations as well as the American College of Surgeons which also required membership in some or all of the other associations as a qualification for its members.

A controversy had existed for a number of years between a large majority of the members of defendant and plaintiff and others on the staff of the Kern County General Hospital and those responsible for its management over the policy of its management and the treatment of patients there. See, Goodall v. Brite, 11 Cal.App.2d 540, 54 P.2d 510.

On March 17, 1932, the membership of defendant adopted the following resolution:

“Whereas, the Program and policy of the Kern General Hospital and its governors is inimical to the best interests of the public health and subversive of the established tenets and of the standards and procedures of the medical profession; and

“Whereas, the principles of medical ethics of the American Medical Association expressly provide that it is unprofessional for a physician to dispose of his service under conditions which make it impossible to render adequate services to his patient or which interfere with reasonable competition among the physicians of a community; therefore be it

“Resolved, by the Kern County Medical Society that any and all members of this Society shall resign from the staff of the Kern General Hospital immediately and shall refrain from all work in the Kern General Hospital as soon as is expedient, having due regard at all times for the welfare of such patients as may be in their charge, until such time as the institution is so conducted as to make it eligible to apply for an Accredited Hospital rating from the Council on Medical Education and Hospitals of the American Medical Association and of the Committee on Hospitals of the American College of Surgeons; and be it further

“Resolved, that failure on the part of any member of the Kern County Medical Association to resign from the staff of said hospital within a reasonable time, while present unsatisfactory conditions exist in the said hospital shall be construed as a violation of ethics, and shall make such member or members liable to such disciplinary action as the Constitution and By–Laws permit and as in the judgment of the Kern County Medical Society may be deemed proper.”

Resolutions similar in import were adopted in the summer of 1931, and almost annually thereafter until 1939. A resolution adopted on April 18, 1935, of similar import, contained the following:

“* * * Be It Further Resolved that this resolution be made a part of the principles of professional conduct of the K. C. M. S., and

“Be It Further Resolved that the secretary be instructed to mail a copy of this resolution to every member of the K. C. M. S.”

On March 28, 1932, written charges were filed against petitioner based on the earlier resolutions. A hearing was had before the board of censors of defendant but no disciplinary action was taken. Other charges were filed in February, 1933, but no action was taken.

The charges which resulted in the expulsion of petitioner were filed on September 16, 1935, and contained the following:

“The undersigned makes the following charges of unprofessional conduct against Dr. Joe Smith, a member of your Society:

“That Dr. Joe Smith has been guilty of the violation of Section 2, Article VI, Chapter II, of the Principles of Medical Ethics of the American Medical Association; of Section 4 (second paragraph), Chapter 1 of the By–Laws of the California Medical Association; and of subdivision (b) of Section 1 of Chapter 1 of the By–Laws of the Kern County Medical Society; in the following respect:

“He is guilty of disposing of his services under conditions that make it impossible to render adequate service to his patients and he is guilty of disposing of his services under conditions which interfere with reasonable competition among physicians in the community where he lives and practices.” (Emphasis ours.)

“All of which has been committed and is being committed as follows”: That Dr. Smith was guilty of specified conduct in the Kern County General Hospital which resulted in “interfering with reasonable competition among physicians of the community”.

“That such course of conduct on the part of Dr. Joe Smith was and is followed, carried on, and maintained as a result of contact with the County of Kern through the Board of Supervisors of said county whereby the said Dr. Joe Smith disposed of his services to the county of Kern when such policy resulted and results in said hospital being so overcrowded with patients and so understaffed that it became and is and always has been impossible to render adequate service to all the patients he and the physicians and surgeons so associated with him were employed to attend, and said hospital is so poorly operated that many patients therein are frequently neglected and mistreated and it is impossible for said Dr. Joe Smith and the physicians and surgeons associated with him to render adequate service to the patients of said hospital, * * *.”

The principles of medical ethics of the defendant association, summarized in the italicized portion of the foregoing quotation, are adopted from the Principles of Medical Ethics of the American Medical Association. The California Medical Association has similar Principles of Medical Ethics.

These charges were served on petitioner and October 3, 1935, was fixed as the time for hearing by the Committee on Grievances of defendant. Petitioner was notified of the time and place of hearing. He filed a written answer to the charges but did not appear at the hearing.

The by–laws of defendant require the committee to give both the accused and the accuser ample opportunity to be heard and after the hearing to report in writing to the board of directors within thirty days, accompanying the report with a typewritten report of the testimony and proofs offered.

The committee met to take evidence, but, as we have observed, petitioner did not appear at the hearing. No oral evidence was taken at the hearing, but probably documentary evidence was submitted which has been omitted from the record under a stipulation that it shall not be deemed material to any point that may be raised on this appeal. The committee on grievances submitted its written report to the board of directors which, after notice to petitioner, proceeded to act on it on November 12, 1935.

Petitioner again failed to appear at this hearing. Parol evidence was taken before the board, some of which was hearsay. Evidence was received to the effect that the Kern County General Hospital was understaffed and that patients there had been neglected and given insufficient medical attention for that reason.

The board of directors sustained the charges against petitioner and as a penalty voted his expulsion from defendant. These findings were reported to the association which on November 21, 1935, by a vote of twenty “Yes” to two “No” sustained the action of the Board of Directors and expelled petitioner.

Petitioner correctly maintains that three purported members who voted were not qualified members as they had not signed the constitution and by–laws, which act was made a prerequisite to membership. It is clear that there were only nineteen members of defendant present at the time of the vote to expel petitioner. The records of the association show forty–two members who were signers of the constitution and by–laws. Three of these had been suspended and the by–laws prohibited petitioner from voting.

As was permitted by the rules of the associations petitioner appealed his case to the California Medical Association and to the American Medical Association. Both appeals were decided adversely to him. This action (mandamus) was then instituted to compel defendant to reinstate him to membership.

The constitution and by–laws of defendant do not specify the number of members who must be present at a meeting to constitute a quorum. The by–laws do adopt Roberts Rules of Order which require a majority of the members of an organization to be present to constitute a quorum. As there were only nineteen of the members of the association in attendance at the meeting when the motion to expel petitioner was put to vote, there was not a quorum present even though we regard the membership of the association at that time as only thirty–eight by regarding the suspended and expelled members no longer members of the association. The presence of a quorum is necessary for the transaction of business. It follows that no motion to sustain the action of the board of directors in expelling petitioner was carried. The by–laws provide that “In case the action of the board is not sustained, the matter shall be returned to the board of directors for further consideration”. As the membership did not sustain the action of the board of directors, it follows that petitioner was not expelled.

It is generally accepted law in California that the courts will not interfere with the internal economy, rules of membership, rules of procedure or discipline of members of a strictly fraternal or social unincorporated voluntary organization in which the members have no severable or divisible proprietary interest in any portion of its property and where the members' interest in its property is only an incident of membership as the courts have no standard by which to determine the propriety of such rules as those things pertain solely to the internal economy of the organization. It is only when there has been an unreasonable and arbitrary invasion of private rights that the courts will interfere and then generally the inquiry will be limited to an investigation of the question of whether or not the society has violated its own rules of procedure. Lawson v. Hewell, 118 Cal. 613, 50 P. 763, 49 L.R.A. 400. In making such inquiry the courts will be governed by these well–established rules; that the constitution and by–laws of such voluntary association constitute a contract between the association and its members (Dingwall v. Amalgamated Ass'n, etc., 4 Cal.App. 565, 88 P. 597); that a person may, by contract, waive his legal rights (Levy v. Magnolia Lodge, 110 Cal. 297, 42 P. 887); that when the accused has been given a fair trial before the tribunals of the society according to the procedure established by it, the courts will not interfere (Josich v. Austrian Benevolent Society, 119 Cal. 74, 51 P. 18); that the proceedings before trial committees are not bound about by technicalities (McConville v. Milk, etc., Union, 106 Cal.App. 696, 289 P. 852); that strict rules of procedure and interpretation are not applied (Robinson v. Templar Lodge, 117 Cal. 370, 49 P. 170, 59 Am.St.Rep. 193); that membership in such an association is not a right that can be demanded but is a privilege that may be granted or withheld on the terms and conditions imposed by the association (Greenwood v. Building Trades Council, 71 Cal.App. 159, 233 P. 823; 3 Cal.Jur. 350); that an illegal motive will not render a lawful act unlawful. Parkinson Co. v. Building Trades Council, 154 Cal. 581, 98 P. 1027, 21 L.R.A.,N.S., 550, 16 Ann.Cas. 1165; Boyson v. Thorn, 98 Cal. 578, 33 P. 492, 21 L.R.A. 233; Greenwood v. Building Trades Council, supra.

Petitioner raises another question which perhaps should be noticed. He urges that the members of the committee on grievances and of the board of directors were so prejudiced against him as to disqualify those bodies from conducting the proceedings against him. As those bodies were the only ones in existence with power to conduct the hearings, we think the rule of necessity, discussed in Nider v. Homan, 32 Cal.App.2d 11, 89 P.2d 136, is sufficient answer to this argument.

As it appears from the record that the rules of defendant were not followed in the proceedings which resulted in petitioner's expulsion as there was not a quorum present in the meeting when the vote to expel was taken, and consequently, as petitioner was never expelled, the judgment can not be sustained.

The judgment is reversed.

MORAN, Justice pro tem.

We concur: BARNARD, P. J.; MARKS, J.

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