Opinion
As Amended Dec. 15, 1961.
Hearing Granted Jan. 31, 1962.
Opinion vacated 22 Cal.Rptr. 211, 371 P.2d 987.
Robert L. Hughes, Oakland, for appellant.
Barfield & Barfield, San Francisco, for respondent.
DEVINE, Justice.
This case presents a single question: may a member of a labor union maintain an action for damages resulting from personal injuries allegedly caused by negligence of the union in maintaining its property?
The trial court gave the answer 'no' to this question by granting a motion for summary judgment in favor of the union. The complaint states that plaintiff was a member of defendant union on January 14, 1959, and that on that date plaintiff entered a parking lot maintained by the union adjacent to its hall in Oakland, California. It is alleged that the lot was kept for the accommodation of union members attending meetings, that it was in a dangerous condition by reason of a concrete obstruction negligently maintained by the union and by certain officers of the union, who are also named as defendants. It is alleged that as a proximate result of said negligence, plaintiff was caused to fall and to sustain injuries, when he had entered the lot to attend a union meeting.
Defendant union does not dispute the sufficiency of the complaint except as to the suability of the union in such a case. The union and the officers, individually, answered, denying negligence, proximate cause and damages, and alleging contributory negligence. Motion for summary judgment was made by the union only, and this was supported by an affidavit of an officer of the union stating that plaintiff was, at all relevant times, a regular member of the union, and this was not denied. The motion for summary judgment in favor of defendant union was granted.
Counsel for both parties have stated in their briefs that the single question of the case has not been decided by the courts of this state, and we know of no California decision on the point. We have approached the question, therefore, by reviewing decisions in other jurisdictions, by applying our own judgment as to the logic bearing on the problem, and by a consideration of laws and decisions of this state on such subjects as seem, by our own judgment or by arguments of counsel, to be proper for discussion. We have decided that the judgment should be sustained.
The general rule in other jurisdictions is that an unincorporated association cannot be sued by one of its own members. The cases are collected in 14 A.L.R.2d 473-478. They are few, the ones decided since 1900 being: Hromek v. Gemeinde (1941), 238 Wis 204, 298 N.W. 587 (plaintiff fell on Koogler v. Koogler
Roschmann v. Sanborn Carr v. Northern Pac. Beneficial Ass'nSince the publication of the above note, two cases have been decided in which plaintiffs fell on premises of fraternal orders, plaintiffs being members, and the rule of non-suability was applied, namely: Duplis v. Rutland Aerie, No. 1001, etc. (1955), 118 Vt. 438, 111 A.2d 727; and Mastrini v. Nuova Loggia Monte Grappa (1954), 1 Pa.Dist. & Co.R.2d 245.
The cases cited by appellant do not set up a contrary, or minority, rule, because they are readily distinguishable. Saltsman v. Shults (N.Y.S.C.t, 1878), 14 Hun 256, involved a joint stock company which by statute is treated as a corporation in New York; in Gillette v. Allen (1945), 269 A.D. 441, 56 N.Y.S.2d 307, the court did not rule on the point, but simply held that the pleading of the defense was insufficiently made, and remanded the case for further pleadings. In Fray v. Amalgamated Meat Cutters, etc. (1960), 9 Wis.2d 631, 101 N.W.2d 782, which is analyzed in 13 Stanford Law Review 123-126, the Supreme Court of Wisconsin held that an action is sustainable by a member of a union for negligence in failing to register his grievance with the employer and to request arbitration. The court made a distinction between such a duty, which is owed to the member personally, and a common duty such as the duty to maintain premises in a safe condition, the duty claimed to have been breached in the case before us, which was the same duty claimed to have been breached in the earlier Wisconsin case of Hromek v. Gemeinde, supra, 238 Wis. 204, 298 N.W. 587. In the Fray case, the Wisconsin court, expressly distinguishing the Hromek case, did not depart from the principle upheld in that case as to torts resulting from breach of a common duty. We need not, and we do not, decide in this case whether an association may be sued by a member for a tort which has resulted from a breach of duty other than one which is common as distinguished from a duty which is personal to plaintiff.
Thus, we find that although the rule of non-suability of an association for negligence, save for the exception of breach of a personal duty as in the Fray case, although not of frequent application, has been applied whenever it was invoked by proper pleading.
The general rule drawn from these cases is stated, in the American Low Reports note, as follows: '* * * 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 that enterprise is imputable to each and every other member, so that the member who has suffered damaged 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, The reasoning for the rule, as given in the American Law Reports note, impresses us as being logically correct. We make one or two elaborations. Although some associations may be large in membership, as without doubt the respondent is, so that the individual plaintiff may take an insignificant part in the management of its affairs, still the fact that he is entitled to have some participation in the control places him in the dual role as victim (assuming, as at present we do, that the pleaded facts can be established) of negligence of the members of the association and as one of the members guilty, by representation, of the same negligence.
It must be considered that some associations are very small, and that a single person might have much to do with their management, or at least have the ability, whether he exercised it or not, to exert a large influence in the control. Even in an organization of fair size, a majority of members might be injured by a single act or omission which constitutes negligence, and it would be incongruous for them to be suing themselves.
It is argued by appellant that, since negligence of one joint venturer who is in control of an action is not imputed to his associate in the enterprise, unless the latter also had control of the activity which produced the injury (citing Fernquist v. San Francisco Presbytery, 152 Cal.App.2d 405, 313 P.2d 192; Roberts v. Craig, 124 Cal.App.2d 202, 268 P.2d 500, 43 A.L.R.2d 1146; Ledgerwood v. Ledgerwood, 114 Cal.App. 538, 300 p. 144), so negligence should not be imputed to plaintiff as union member, unless it were shown that he had control over the maintenance of the property. There is no conflict, however, between the rule of non-suability of an association, as we shall apply it to this case, and the rule generally denying imputation of negligence in the case of joint venturers. In the case before us, plaintiff has brought his action against the defendants who, as officers of the association, were actually negligent, according to the allegations of his complaint. No contention is made by these defendants that their negligence, if any, would be imputable to plaintiff as a joint venturer or associate. The rule in the non-imputation cases is not disturbed in any way by our decision.
Plaintiff, however, is seeking to hold the association itself responsible for the acts of individuals who were his agents as much as they were agents of any other member. Thus, if the association were to be held liable, then under section 388 of the Code of Civil Procedure the joint property of all of the associates would be bound by a judgment favorable to plaintiff, and this would be based on respondeat superior, although plaintiff himself would be one of the principals of the common agent or agents.
Finally, appellant contends that even if the non-suability by members rule applies to associations generally, such a rule should not apply to labor unions, which are sui generis, and which are to be considered legal entities separate from their members. He points out that he is not free, as members of fraternal and social societies are, to withdraw from membership without losing his means of employment. A brief consideration of some of the cases cited by appellant on this point is in order.
In Oil Workers International Union, CIO v. Superior Court, 103 Cal.App.2d 512 at page 571, 230 P.2d 71, at page 106, there is language, that 'such [labor] organizations are not longer comparable to voluntary fraternal orders or partnerships; that they are sui generis, and approximate corporations * * *.' The union, having been made a defendant under the provisions of section 338 of the Code of Civil Procedure, was held subject to the provisions of law relating to contempt of court for violation of a restraining order. The question of suability by a member did not arise in that case, nor, of course, in the many cases Nor are those cases relevant in which a member brings an action against the union for breach of contract, such as Elevator Operators Etc. Union v. Newman, 30 Cal.2d 799, 186 P.2d 1 (on cross-complaint); or for protection of his, the member's property interest in the union funds, as in Mooney v. Bartenders Union Local No. 284, 48 Cal.2d 841, 313 P.2d 857, 64 A.L.R.2d 1154; or for wrongful expulsion and the like, as in Harris v. National Union of Marine Cooks and Stewards, 98 Cal.App.2d 733, 221 P.2d 136, because in those cases the union has taken a position adverse to plaintiff, and the member or members who have created the breach did not act as plaintiff's agents at the time of the breach. The distinction was pointed out in United Association of Journeymen, Etc. v. Borden (1959) 160 Tex. 203, 328 S.W.2d 739 at page 742, in which the court said that the rule for non-suability does not apply where the conduct which is undertaken is strictly adverse to the member's interests, saying: '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; Mechem on Agency, 2d ed. 1914, Vol. 2, p. 1311, § 1728.' In Fray v. Amalgamated Meat Cutters, Etc., supra (1960) 9 Wis.2d 631, 101 N.W.2d 782, 785, the distinction made in the Borden case is expressly adopted.
In the case before us, whoever may have maintained the property negligently did so as plaintiff's agent as well as agent for every other member. Had the property been maintained properly (assuming of course, it was not), plaintiff would have benefited equally with the others.
We believe we should adhere to the rule established in other jurisdictions, which is supported by good logic, and that if exception is to be made in this state, or if, as appellant urges, labor unions, in any event, should be removed from the general rule, the departure or departures from the general rule must be made by statute.
Appellant is not remediless. He has his action against the allegedly negligent officers.
Judgment for defendant is affirmed.
DRAPER, P.J., and SALSMAN, J., concur.