Calvary Baptist Church of Marion, Ind. v. Joseph

Decision Date26 April 1988
Docket NumberCV-420
Citation522 N.E.2d 371
PartiesCALVARY BAPTIST CHURCH OF MARION, INDIANA, Petitioner, v. James O. JOSEPH, Respondent. 27S04-8804-
CourtIndiana Supreme Court

Albert C. Harker, Kiley, Osborn, Kiley, Harker, Michael & Certain, Marion, for petitioner.

Bruce A. McTavish, Guerrero, Guerrero & Guerrero, Marion, for respondent.

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Fourth District Court of Appeals. Plaintiff James Joseph (Joseph) brought action in the trial court against Calvary Baptist Church (church) for personal injury he suffered due to alleged negligent conduct of a fellow church member in setting up a ladder. The trial court granted summary judgment for the church and Joseph appealed. The court of appeals reversed the granting of summary judgment, finding there were material issues of fact to be determined, and finding that all unincorporated associations including churches are amenable to suit by their members for tortious acts. Joseph v. Calvary Baptist Church (1986), Ind.App., 500 N.E.2d 250. Petition to transfer is brought by the church, claiming the court of appeals erred in interpreting and applying Indiana law on this subject. This court finds the trial court properly entered summary judgment and accordingly vacates the opinion of the court of appeals and affirms the trial court.

The facts are not in dispute. On July 7, 1982, James Joseph, a deacon of the Calvary Baptist Church, and several other church members were helping to repair the roof of the church building. The roof was divided into an upper and lower portion. Joseph was working on the lower portion with fellow member Willie Wofford. Another church member, Al Green, was responsible for keeping the roofers supplied with shingles. Periodically Green moved the ladder the roofers used to ascend to the roof so he could deliver shingles to workers who needed them. The last time he moved the ladder he thought it felt "uncomfortable" when he set it up. After the men worked for some time, they agreed to take a break. Joseph stepped onto the ladder and it began to fall. Joseph fell onto a concrete sidewalk. He broke his heel and suffered possible internal injuries as a result of the fall.

The court of appeals conceded the common law substantive rule, followed by the majority of jurisdictions, is that a member of an unincorporated association injured due to the tortious conduct of another member cannot sue the association. However, the court of appeals, relying on O'Bryant v. Veterans of Foreign Wars (1978), 176 Ind.App. 509, 376 N.E.2d 521, found Indiana had rejected that rule.

In O'Bryant, the plaintiff brought an action against the Veterans of Foreign Wars, an unincorporated association in which he was a member, seeking damages for bodily injury allegedly caused by the association's negligence. As the record did not disclose the nature of the negligent conduct claimed as the proximate cause of O'Bryant's injury, the court of appeals stated:

It obviously attempts to present only the abstract question of whether a member of an unincorporated association can maintain an action against the association for bodily injuries allegedly the proximate result of a person or persons engaged in some activity on behalf of the association under circumstances which would make the association liable were the plaintiff not a member of the association. We shall answer the question without pausing to consider whether it is properly presented.

O'Bryant, 176 Ind.App. at 510, 376 N.E.2d at 521.

The trial court in O'Bryant found that under no circumstances can a member of an unincorporated association sue the association for negligence. The rationale followed by the trial court was that an unincorporated association, like a business partnership, has no legal entity or existence apart from its members. It cannot sue or be sued in its own name but only in the names of its partners or members. Its members are engaged in a joint enterprise in which each member has the legal right to exercise control over the operation of the association, thus each member as to each other member is both principal and agent in matters involving the association's activities.

O'Bryant was based primarily on Indiana Trial Rules 17(B) and 17(E). Trial Rules 17(B) and (E), were enacted by the 1969 session of the General Assembly and later adopted without change by order of the Indiana Supreme Court, effective January 1, 1970. These rules provide:

17(B) Capacity to sue or be sued. The capacity of a party to sue or be sued shall be determined by the law of this state, including its conflict rules, except that a partnership or unincorporated association may sue or be sued in its common name.

17(E) Partnerships and unincorporated associations. A partnership or an unincorporated association may sue or be sued in its common name. A judgment by or against the partnership or unincorporated association 'shall bind the organization' as if it were an entity. A money judgment against the partnership or unincorporated association shall not bind an individual partner or member unless he is named as a party or as a member of a class in an appropriate action (Rules 23 and 23.2).

The court of appeals in O'Bryant found that since these rules were adopted by the legislature and the supreme court, they could be effective as rules of procedural law as well as rules of substantive law and therefore change the substantive law to authorize a member of an association to sue and recover from the association in tort. O'Bryant, 176 Ind.App. at 513, 376 N.E.2d at 523. The O'Bryant court reasoned that the association then became a separate and distinct entity from the persons who were the members. Id. "As such artificial entities they can serve as the principals of their officers, agents, and employees without need to resort to the fiction that the members of the association are the principals." Id.

We reject such a broad application of these rules and expressly overrule O'Bryant. Trial Rules 17(B) and (E) were directed to the suability of unincorporated associations as parties. We do not see that it was the intention of the legislature nor this court in authorizing these rules to change the substantive rule of non-liability of associations to members for torts committed by other members. Trial Rule 17, titled "Parties," covers whether a particular party has the capacity to sue or be sued. It defines who may be a party plaintiff or defendant and addresses in subsections (B) and (E) partnerships and unincorporated associations. Trial Rule 17 is an extension of early equity principles, statutes, and rules providing for unincorporated associations to sue or be sued in their own name.

The strict common law rule was that an unincorporated association could not sue or be sued in its association name as it did not exist as an entity outside its membership. Action had to be maintained by or against the individual members. This presented many and varied problems dependent on the nature of the association, its size demonstrated by the number of its members, the relationship any individual member had to control the activities of the association, and the ability to discover who the members were and where they might be found. The harsh impact of this strict common law procedural rule resulted in a doctrine arising in equity of parties by representation in cases where strict adherence to the common law rule would defeat the enforcement of legal and equitable rights. In discussing the equitable doctrine and its application to present day conditions, Chief Justice Taft stated in United Mine Workers v. Coronado Coal Co. (1922), 259 U.S. 344, 388-389, 42 S.Ct. 570, 575-576, 66 L.Ed. 975, 986:

It would be unfortunate if an organization with as great power as this International Union has in the raising of large funds and in directing the conduct of four hundred thousand members in carrying on, in a wide territory, industrial controversies and strikes, out of which so much unlawful injury to private rights is possible, could assemble its assets to be used therein free from liability for injuries by torts committed in course of such strikes. To remand persons injured to a suit against each of the 400,000 members to recover damages and to levy on his share of the strike fund, would be to leave them remediless.

Legislatures, including the Indiana General Assembly, responded to this equitable doctrine by authorizing suits by and against representative persons. The intention was to incorporate in the code the equitable rule of procedure which authorized suits by and against representatives of the members of an unincorporated association of a large number of persons. Slusser v. Romine (1936), 102 Ind.App. 25, 31, 200 N.E. 731, 734; Colt v. Hicks (1932), 97 Ind.App. 177, 188, 179 N.E. 335, 340, trans. denied. Thus, Burns Indiana Statutes Annotated 1933 provided in Sec. 2-220 (277):

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  • Bladen v. First Presbyterian Church of Sallisaw, 76870
    • United States
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    ...was amenable to negligence suit by a member of the association for injuries sustained by fall). But see, Calvary Baptist Church v. Joseph, 522 N.E.2d 371 (Ind.1988), (church member injured during church roof repair project could not bring action against church organized as an unincorporated......
  • Cox v. Thee Evergreen Church, D-0938
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    ...association injured due to the tortious conduct of another member cannot sue the association." 2 See Calvary Baptist Church v. Joseph, 522 N.E.2d 371, 373 (Ind.1988); see also Zehner v. Wilkinson Memorial United Methodist Church, 399 Pa.Super. 165, 581 A.2d 1388 (1990). See, e.g., Goins v. ......
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