(concurring) — In United Bhd. of Carpenters v. United States, 330 U.S. 395, 91 L. Ed. 973, 67 S. Ct. 775 (1947), an indictment was brought for conspiracy under the Sherman Act (15 U.S.C. § 1) involving a group of local manufacturers and dealers in millwork, their incorporated trade associations and officials thereof, and a group of unincorporated trade unions and their officials and business agents. The question before the United States Supreme Court was whether section 6 of the Norris-LaGuardia Act, 47 Stat. 70-71 (1932), limited the power of the trial court in trying the case. After holding that the limitations of the section applied to all federal courts in matters growing out of labor disputes, the court explored the legislative history of the section and determined that it was intended
to relieve organizations, whether of labor or capital, and members of those organizations from liability for damages or imputation of guilt for lawless acts done in labor disputes by some individual officers or members of the organization, without clear proof that the organization or member charged with responsibility for the offense actually participated, gave prior authorization, or ratified such acts after actual knowledge of their perpetration.
(Footnotes omitted.) 330 U.S. at 403.
The court continued:
Thus § 6 limited responsibility for acts of a co-conspirator — a matter of moment to the advocates of the bill. Before the enactment of § 6, when a conspiracy between labor unions and their members, prohibited under the Sherman Act, was established, a widely publicized case had held both the unions and their members liable for all overt acts of their co-conspirators. This liability resulted whether the members or the unions approved of the acts or not or whether or not the acts were offenses under the criminal law. While of course participants in a conspiracy that is covered by § 6 are not *513immunized from responsibility for authorized acts in furtherance of such a conspiracy, they now are protected against liability for unauthorized illegal acts of other participants in the conspiracy.
(Footnotes omitted.) 330 U.S. at 404. This paragraph and the further discussion which the court pursued concerning the legislative history reflect the court's view that the section was enacted to forestall judicial discouragement of legitimate union activity through application of rules of conspiracy liability. The focus was indeed upon removing unjust judicial obstacles to labor organization and union activities. The court observed that proponents of the section had argued that it was not its purpose to affect the law of agency in civil matters. This court, when it decided Titus v. Tacoma Smeltermen's Local 25, 62 Wn.2d 461, 383 P.2d 504 (1963), was not unjustified in concluding from the language of United Bhd. of Carpenters v. United States, supra, that the United States Supreme Court had found the thrust of the federal provision to be aimed at criminal prosecutions, rather than at damage suits by persons who have suffered physical injuries at the hands of overzealous picketers.
While the same court, in the later case of United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966), extended the holding of the United Brotherhood case to cover a civil conspiracy action, it did so without discussion of the intended scope of section 6 of the federal act. The wrong complained of there was, like that in United Brotherhood, economic harm resulting from union activities. In neither case was the court called upon to decide whether the section was meant to restrict recovery in cases of physical assault. I see no reason to assume that it would reach that conclusion were such a case before it. Certainly, in a case such as this, where the evidence before the court shows grave bodily injury inflicted upon the plaintiff by a band of pickets and direct evidence that the international union's representative encouraged and condoned that conduct, it is difficult to conceive that the *514United States Supreme Court would find it within the congressional intent to deny to the plaintiff his common law right of recovery.
It may be that our interpretation of RCW 49.32.070 in Titus was too narrow. But if that construction is to be revised, I would wait until a case arises in which it is apparent that the result which it produces was not intended by the legislature. I can find in our statutes no indication that the legislature ever intended to encourage violence in union activities, and the construction urged by the petitioner, as well as the dissent, would do just that. Since our decision in Titus, labor relations in this state have been conducted successfully without the need for resort to such tactics, and I believe we can trust the legislature to have taken note of that fact. It is evidence that the construction adopted in that case has not aroused sufficient public dissatisfaction to inspire the legislature to correct that interpretation, if indeed it was in error. Seventeen years of acquiescence convinces me that the legislature has found that this court's interpretation, though perhaps not adhering to the exact letter of the enactment, gives effect to its spirit and serves the legislative purpose.
Accordingly, I concur in affirmance of the trial court's order denying the defendant's motion for summary judgment.
Hicks and Williams, JJ., and Hamilton, J. Pro Tern., concur with Rosellini, J.