Opinion
Hearing Granted Feb. 21, 1962.
Opinion vacated 23 Cal.Rptr. 403, 373 P.2d 467.
Bernard C. Brennan and William E. Cornell, Los Angeles, for appellant.
Parker, Stanbury, Reese & McGee, by Raymond Stanbury, Los Angeles, for respondent.
LILLIE, Justice.
Plaintiff, a member of defendant union, filed a complaint for damages against Operating Engineers Local Union No. 12, an unincorporated association (hereinafter referred to as 'union'), and certain of its officers, members and employees, therein alleging an assault and battery inflicted upon him by the individual defendants at a regular district union meeting. At the outset of the trial, and outside of the presence of the jury, defendant union moved the lower court for a nonsuit on the ground that as a member, plaintiff lacks capacity to sue it. The motion was granted; from the judgment of nonsuit plaintiff appeals. The trial against the individual defendants was placed off calendar pending the determination of the within appeal. The issue here involves only the union. For purposes of the motion the parties stipulated to the following facts: defendant union is an unincorporated association of which plaintiff, an operating engineer, is a member in good standing; on August 1, 1957, the union held a regular district meeting in Bakersfield in a hall rented by it for the purpose; the chairman of the it for that purpose; the chairman of the of the union; as chairman, Willis was lax in conducting the meeting and allowed the same to get out of hand; the following defendant officers and members of the union were present: Twombley, president; Willis, vice president; DeFlumere, business representative; Ennis, conductor; Sanders, recording and corresponding secretary, and Waggoner, a member; defendant Bronson, business manager, was not present; at the meeting the named members and officers assaulted plaintiff and committed a battery upon him causing him physical injury; and prior thereto, on July 26, 1957, an official union newspaper publication circulated to approximately 20,000 members of Local 12 contained an article under the by-line of R. B. Bronson, business manager of defendant union, reading in part, 'If you, individually along with many of your brother engineers, feel strongly that the persons who have sought to disrupt your organization by instituting these court suits should be dealt with by whatever means is possible to prevent such future attempts to discredit your local union----.'
Conceding his union membership, appellant argues that section 388, Code of Civil Procedure, establishes, and permits him to enforce and prosecute, liability against the union for the torts of its members, officers and employees.
While section 388 permits an unincorporated association to be sued in its common name in any action to enforce an already existing liability, it is apparent from the expressions of our Supreme Court that it neither creates such an association a legal entity for substantive purposes nor establishes liability against it.
An unincorporated association, an aggregate of individuals called for convenience by a common name, (Scott v. Donahue, 93 Cal.App. 126, 269 P. 455; Grand Grove, U.A.O.D. of California v. Garibaldi Grove No. 71, 130 Cal. 116, 62 P. 486) at common law was not regarded as a legal entity with collective rights and liabilities separate and apart from its members. It had no legal capacity to become a party to an action (Juneau Spruce Corp. v. International Longshoremen's & Warehousemen's Union, 37 Cal.2d 760, 235 P.2d 607; Case v. Kadota Fig Ass'n, 35 Cal.2d 596, 220 P.2d 912) and when suit was brought against the associates each had to be named individually; this became particularly burdensome when the association was composed of a large membership. To eliminate this procedural inconvenience, section 388, Code of Civil Procedure was enacted to provide: 'When two or more persons, associated in any business, transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; and the judgment in the action shall bind the joint property of all of the associates, and the individual property of the party of parties served with process, in the same manner as if all had been named defendants and had been sued upon their joint liability.' Associates may now be sued by their common name (Jardine v. Superior Court, 213 Cal. 301, 2 P.2d 756, 79 A.L.R. 291; Artana v. San Jose Scavenger Co., 181 Cal. 627, 185 P. 850; Juneau Spruce Corp. v. International Longshoremen's & Warehousemen's Union, 119 Cal.App.2d 144, 259 P.2d 23); labor unions are deemed to be included in section 388 for that purpose. (Juneau Spruce Corp. v. International Longshoremen's & Warehousemen's Union, 37 Cal.2d 760, 235 P.2d 607; Oil Workers International Union v. Superior Court, 103 Cal.App.2d 512, 230 P.2d 71.) However, section 388 is limited in scope, is purely procedural, and does no more than Jardine v. Superior Court,
Thus, section 388 establishes an unincorporated association a legal entity only to the extent of allowing suit against it in its common name, but the section neither extends the entity theory to other procedural incidents nor, as urged by appellant, creates an entity for substantive purposes or establishes liability against it for the torts of its members and officers. This limited application of the entity theory is reflected in Case v. Kadota Fig Ass'n., 35 Cal.2d 596, 220 P.2d 912, holding that an unincorporated association can not maintain an action in its common name, and in Juneau Spruce Corp. v. International Longshoremen's & Warehousemen's Union, 37 Cal.2d 760, 235 P.2d 607, in which the court refused to extend the entity doctrine for venue purposes: 'The general rule is that the entity theory is rejected except where specifically provided for by statute. For example, persons associated in business under a common name may be sued under that name. Code Civ.Proc. § 388; Jardine v. Superior Court, 213 Cal. 301, 2 P.2d 756, 79 A.L.R. 291. However, it does not follow that the association may be regarded as an entity for all other purposes. '* * * this statutory relaxation of the common law applies only to associated defendants. Associated plaintiffs still must sue in their individual names. * * *' Case v. Kadota Fig Ass'n., 35 Cal.2d 596, 602, 220 P.2d 912, 916.' (Juneau Spruce Corp. v. International Longshoremen's & Warehousemen's Union, 37 Cal.2d 760 p. 763, 235 P.2d 607 p. 609.) In commenting on Artana v. San Jose Scavenger Co., 181 Cal. 627, 185 P. 850, and Jardine v. Superior Court, 213 Cal. 301, 2 P.2d 756, 79 A.L.R. 291, the court continued: '* * * that (Artana) case holds only that an association is a legal entity distinct from its members for the purpose of section 388 of the Code of Civil Procedure permitting it to be sued in its common name. The plain language of the opinion so limits the decision. The same may be said as to Jardine v. Superior Court, supra.' (p. 764, 235 P.2d p. 609.) Subsequently the Juneau decision (37 Cal.2d 760, 235 P.2d 607) was discussed by this court in Juneau Spruce Corporation v. International Longshoremen's & Warehousemen's Union, 119 Cal.App.2d 144, 259 P.2d 23, on appeal from a judgment on the merits, as follows: 'The effect of that opinion (Juneau) is that while such an association (labor union) is a legal entity for the purpose of being sued under sec. 388 'it does not follow that the association may be regarded as an entity for all other purposes'.' (p. 147, 259 P.2d p. 25.)
Moreover, in Jardine v. Superior Court, 213 Cal. 301, 2 P.2d 756, the court expressed its view that section 388 in no way affects substantive liability: 'Since it (section 388) establishes no substantive liability, and merely provides a convenient method of suit to enforce an existing liability, there is certainly no reason to restrict its application to any one class of associations doing business.' (p. 320, 2 P.2d p. 764) (Emphasis added.) And again at page 321, 2 P.2d at page 764: 'We may concede that the statute was enacted so that suits might be brought to enforce an established liability, and that it does not contemplate the bringing of actions where no liability exists. In this it is similar to every other statute which provides a remedy for the enforcement of a right.' Thus, in Juneau Spruce Corp. v. International Longshoremen's & Warehousemen's Union, 119 Cal.App.2d 144, 259 P.2d 23, while the union was sued as a legal entity under section 388, liability was imposed under another statute, the Taft-Hartley Act. (29 U.S.C.A. § 185(b).) 'The two statutes (§ 388 and 29 U.S.C.A. § 185(b) in this respect are complimentary, sec. 388 provides a perfect statutory vehicle for the judicial enforcement against We are here faced, not with a tort action against the union by a third party, but one brought against it by a member for the unlawful and wrongful acts of officers, members and employees of the union. On the matter of tort liability of the unincorporated association, authorities in California are negligible; but the prevailing view in other jurisdictions refuses to extend the entity doctrine to an association, sued in its common name by a member, for the purpose of imposing tort liability for the negligent acts of its members or officers. The theory upon which this view is predicated is discussed in an Annotation entitled, 'Recovery by Member From Unincorporated Association for Injuries Inflicted by Tort of Fellow Member,' in 14 A.L.R.2d 473. Discussing a rule such as our section 388, the writer states: 'primarily a rule of procedure, applicable alike whether the suit is by a third person or by a member against the association, (it) should not, however, be confused with the substantive question as to the right of a member to sue the association to recover damages for a tort committed against him by the association or by another member thereof. * * * The question has not been presented or determined by the courts very frequently; but the general rule deducible from the few cases passing upon it appears to be that the members of an unincorporated association are engaged in a joint enterprise, and the negligence of each member in the prosecution of the enterprise is imputable to each and every other member, so that the member that has suffered damages to his person, property, or reputation through the tortious conduct of another member of the association may not recover from the association for such damage, although he may recover individually from the member actually guilty of the tort. The reason for this rule, as it is sometimes stated by the courts, is that since the negligence of the tortfeasor member is imputable to the member who has sustained the damage or injury as a result of such tort, the latter may not sue himself for his own negligence; or that, while a principal may recover from an agent of himself and a common principal, for the tort of the agent, he may not recover from the common principal for such tort--the courts treating the injured member and the association as common principals and the tortfeasor member as the common agent whose negligence is imputable to the injured member for the purposes of an action against the association, though not for the purposes of an action against the tortfeasor member himself.' (p. 473 of 14 A.L.R.2d.)
While the proposition is not everywhere upheld (Grand International Brotherhood of Locomotive Engineers v. Crouch, 236 Ala. 611, 184 So. 173; Ex parte Hacker, 250 Ala. 64, 33 So.2d 324), the majority view does not permit a member of an unincorporated association to maintain a tort action against it for the negligent acts of its members of officers. Thus, the right of a member to recover damages from the association for personal injuries sustained by her from an explision through negligence of certain members in managing a steam table at a fair concession maintained by the association, was denied in DeVillers v. Hessler, 363 Pa. 498, 70 A.2d 333, 14 A.L.R.2d 470, on the ground that the negligence of any one of the members is imputed to each and all of them and since negligence is legally imputed to plaintiff she has no cause of action against the association. In Koogler v. Koogler, 127 Ohio St. 57, 186 N.E. 725, the trustees of an unincorporated association were held to be not liable to a member for personal injuries sustained by him as the result of its falling fire escape ladder, on the ground that while a statute permitted it to be sued in its common name it did not establish substantive liability of the association for tort. In Roschmann v. Sanborn, 315 Pa. 188, 172 A. 657, a member sued an association for negligence in the operation of a bus, the driver of which the Hromek v. Gemeinde,
Martin v Northern Pac. Beneficial Ass'n, Carr v. Northern Pac. Beneficial Ass'n, Marchitto v. Central R. Co. of N. J.,Three California cases, while not suits against an unincorporated association, follow the established rule that an association constitutes no legal entity apart from its members; DeMotte v. Arkell, 77 Cal.App. 610, 247 P. 254; Powell v. Stivers, 108 Cal.App.2d 72, 238 P.2d 34; Allen v. Paradise Grange, No. 490, Inc., 159 Cal.App.2d 247, 323 P.2d 468. In each an unincorporated association was the lessee of certain real property from defendant owner and plaintiff was either a member or the child of a member who was injured by a negligent condition of the premises. In all three cases the court held that inasmuch as an unincorporated association has no legal entity separate from its members, the plaintiff was not before the court as a third party but as a lessee, and could recover from defendant owner only under circumstances enabling a lessee to recover.
Appellant finally argues, that even though a member cannot maintain against an unincorporated association an action for the negligent acts of its members, officers or employees, the principles precluding such a suit have no application to one for their intentional wrongs. A review of the various cases involving suits by members against labor unions, both in and out of this jurisdiction, seems to lend support to appellant's contention. For nearly fifty years California courts, recognizing that the constitution, rules and by-laws of a voluntary unincorporated association constitute a contract between the association and its members, and the rights and duties of the members as between themselves and in their relation to the association, in all matters affecting its internal government and the management of its affairs, are measured by the terms of such constitution and by-laws, and that the purposes of the union usually include an amelioration or improvement of conditions under which the members obtain their livelihood, and the holder of such right is entitled to be protected in its enjoyment against any unauthorized act or proceeding on the part of his fellow-members, either as individuals or in their official or collective capacity, by which his enjoyment of such right will be impaired or destroyed, have permitted a member a right of action against the union which sought to wrongfully deprive him of his membership by expulsion or discharge. Dingwall v. Amalgamated Ass'n, etc., (1906) 4 Cal.App. 565, 88 P. 597. Thus it has long been established Lawson v. Hewell,
DeMille v. American Federation of Radio Artists,Under the same theory our Supreme Court has recognized a tort action against the union where it wrongfully expels a member (Cason v. Glass Bottle Blowers Ass'n, 37 Cal.2d 134, 231 P.2d 6, 21 A.L.R.2d 1387), extending the entity doctrine for that purpose. Holding that the lower court correctly determined that the action partook of the nature of both tort and contrast, the court stated at page 142, 231 P.2d at page 10: 'The record shows that there was a closed shop contract between the national union and plaintiff's employer, and plaintiff was entitled to sue in tort if the union wrongfully expelled him and at the same time refused to let him work because he was not a union member (See James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329, 160 A.L.R. 900; Dotson v. International Alliance, etc., Employees, 34 Cal.2d 362, 210 P.2d 5).' And in 1958 the United States Supreme Court in International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, a California case, in an action based on both tort and contract, established the right of a member to sue the union for damages for wrongful expulsion from membership and breach of his union membership contract and for reinstatement. Speaking of the contractual conception of the relationship between a member and his union, citing Dingwall v. Amalgamated Ass'n, etc., 4 Cal.App. 565, 88 P. 597, the court continued: 'Though an unincorporated association, a labor union, is for many purposes given the rights and subjected to the obligations of a legal entity. See United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 383-392, 42 S.Ct. 570, 573-576, 66 L.Ed. 975 [983-987, 27 A.L.R. 762]; United States v. White, 322 U.S. 694, 701-703, 64 S.Ct. 1248, 1252-1253, 88 L.Ed. 1542 [1547, 1548, 152 A.L.R. 1202].' (356 U.S. 619, 78 S.Ct. 924.) Moreover, courts are recognizing the right of a member to bring suit against the union for other intentional wrongful acts of its members, officers or agents, besides explusion. One, for damages alleging he was wrongfully prevented from serving the last year of a three year term as business agent to which he had been elected, was held to be properly maintained by a member against the union by the United States Circuit Court for the District of Columbia in Glaziers' Local Union No. 963 of Brotherhood of Painters, etc., v. Troutman, 100 U.S.App.D.C. 100, 243 F.2d 44. Another such action arose out of a hearing of a member before the union for abuse of his fellow members; the union found him guilty of the charge, fined him and year and subsequently suspended him from year and subsequently suspendd him from work by his employer at the union's request. For the intentional wrongful acts of union officers, plaintiff recovered actual and exemplary damages from the union. (Taxicab Drivers' Local Union No. 889 v. Pittman, Okl., 322 P.2d 159.) Disposing of the contention that the union could not be liable for the acts of its agents because plaintiff member was equally responsible for the wrongful conduct, the court said at page 167: 'We note, however, that in each of those cases (holding that a union or other unincorporated association is not liable to a member for damage caused by the association's agent) the conduct of the agent was in the performance of his duty on behalf of the association in some project from which the plaintiff could reasonably expect to benefit just as much as any other member, at the inception of the project. Here we have quite a different situation. * * * Common sense leads inexorably to the conclusion that officers of the Union causing plaintiff to be suspended from work without pay are anything but his agents for Thomas v. Dunne,
Sweetman v. Barrows,In line with the prevailing tendency to permit a tort action for an intentional wrongful act, United Ass'n of Journeymen, etc., v. Borden, 160 Tex. 203, 328 S.W.2d 739, p. 740, established 'that a member of an unincorporated association can maintain an action against the latter for damages caused by an intentional wrong knowingly committed by one of its agents, provided the association participates in or otherwise authorizes or ratifies the wrongful conduct.' In that case, Borden, a union member in good standing, sued two union locals alleging they intentionally and wilfully prevented him from working on a particular construction job. The main issue was whether an unincorporated association was liable to a member for damages occasioned by the wrongful act of another member or agent of the association. The court discussed the general rule denying liability for negligent acts and the theory upon which it is predicated, and distinguished DeVillars v. Hessler, 363 Pa. 498, 70 A.2d 333, 14 A.L.R.2d 470, and Hromek v. Gemeinde, 238 Wis. 204, 298 N.W. 587. At page 742 of 328 S.W.2d, it said: 'In each instance the negligence occurred in the course of an undertaking which was for the benefit of all members of the organization, including the plaintiff, and under these circumstances it was entirely proper to impute the wrongful conduct to the latter. It cannot be said, however, that a labor organization or other unincorporated association is never liable to a member for the wrongful conduct of one of its agents. Since the association's immunity rests upon the premise that the tort-feasor also acts as agent for the injured member, the rights and liabilities of the parties necessarily depend upon the relationship existing at the time the wrongful act is committed. For example, where the relation of principal and agent is deemed to exist between the plaintiff and the association's representative when the wrong was done, the former could not acquire a cause of action against the organization by simply terminating his membership. If anyone acting for the association is always to be regarded in law as agent for all of its members in whatever he may do, it would seem to follow that a member could not even recover damages for wrongful expulsion. In such a case the plaintiff might not be a member at the time of suit, but this would not alter the fact that the association's representative was acting as his agent in expelling him from membership.' Recognizing that a member has a cause of action for damages against his union for wrongful expulsion (International Ass'n, of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018), and relying on Taxicab Drivers' Local Union No. 889 v. Pittman, Okl., 322 P.2d 159, the court continued: 'There is thus at least one exception to the general rule that a union representative is to be regarded as an agent for all of its members in everything he does. The wrongful act will not be imputed to an injured member if committed in the course of an undertaking that is strictly adverse to the latter's interests. This is simply another version of the agency rule that a principal is not liable for the torts committed by his agent while acting adversely to him. See 3 C.J.S. Agency § 259; Nechem on Agency, 2d ed., 1914, Vol. 2, p. 1311, § 1728.' (p. 742 of 328 S.W.2d.) And again at page 744 of 328 S.W.2d: 'The legal responsibility of an unincorporated association for the wrongful conduct of its agents should not be substantially different from that of an ordinanry principal. The general rule is one principal is not civilly liable to another for the tortious Ringer v. Wilkin,
Boss v. Tomaras, Fuchs v. Leahy,It appears to us that the intentional and wrongful use of force against a member because of, or to prevent some act in connection with the internal affairs of the union of which the members, officers or employees did not approve, is little different than the wrongful and intentional act, peaceful in nature, of discharging, expelling or suspending a member from membership or removing him from office because of some act of which the members or agents or officers disapproved; in each instance the ultimate purpose is to interfere with his rights of membership. Moreover, it can hardly be said that in beating up the plaintiff, the members and officers were acting for his as well as for the benefit of all other members; without question the violent undertaking was strictly adverse to plaintiff's interests. The stipulated facts disclose that prior to the assault defendant Bronson, business manager of the union, through an official publication circulated among 20,000 members of defendant local, in an article written by him and directed to each member, actually solicited and encouraged them individually, or otherwise, if they felt strongly inclined so to do, to deal 'with persons who have sought to disrupt (their) organization by instituting' certain court suits 'by whatever means is possible to prevent such future attempts to discredit (their) local union'; and that thereafter officers, during a regular union meeting controlled by them at a place hired by the union, accordingly dealt with plaintiff, who they obviously felt was one of those 'persons,'--not by peaceably bringing charges against him and expelling, suspending or disciplining him (as in the cases hereinabove cited), but by by-passing such peaceful means, using force and violence, either to punish him for past acts or to intimidate him from committing future ones. Such action to discipline plaintiff and discourage his future attempts to interfere with the internal affairs of the union, is on par with that taken by agents, members or officers to wrongfully suspend or discharge a member from office or deny him his right to work; only the means differ. As in the expulsion cases, it would be incongruous to say that Bronson, the union business manager, and the officers who assaulted plaintiff were acting as agents for plaintiff (Taxicab Drivers' Local Union No. 889 v. Pittman, Okl., 322 P.2d 159; United Ass'n of Journeymen, etc., v. Borden, 160 Tex. 203, 328 S.W.2d 739), even though they may have felt in doing so they were acting for the good of the union. Further, in consideration of the article circulated among the members of Local 12 and the business manager's active participation in its publication, and the fact that the assault occurred during a regular union meeting controlled by the officers in a hall rented by the union, by union officers and members, any suggestion to avoid liability that their wrongful conduct was not actively participated in by defendant union or authorized by it, is wholly without merit. (United Ass'n of Journeymen, etc., v. Borden, 160 Tex. 203, 328 S.W.2d 739.) We think this case represents another exception to the general rule of association immunity and the plaintiff is entitled to maintain his suit against the union for the intentional wrongful acts of its employees, agents, members and officers.
Respondent has urged upon us the cases of Gilbert v. Crystal Fountain Lodge, 80 Ga. 284, 4 S.E. 905; Marchitto v. Central R. Co. of N. J., 9 N.J. 456, 88 A.2d 851, and Goins v. Missouri Pacific Sys. Fed. of Main. of Way Emp., U., 8 Cir., 272 F.2d 458. The Gilbert case, an action for slander, was decided in 1887; while perhaps expressing the majority view at that time, we reject it as controlling here in the Brotherhood of Painters, etc., v. Troutman,
Assuming all of the facts of the stipulation to be true and indulging in every legitimate inference, there is sufficient evidence to justify an affirmance of a judgment in plaintiff's favor had one been rendered. (Estate of Lances, 216 Cal. 397, 14 P.2d 768; Raber v. Tumin, 36 Cal.2d 654, 226 P.2d 574.)
For the foregoing reasons the judgment of nonsuit is reversed.
WOOD, P.J., and FOURT, J., concur.