Inglis v. Operating Engineers Local Union No. 12

• Decision Date: 29 December 1961
• Docket Number: No. 12,12
• Citation: 18 Cal.Rptr. 187
• Parties: Charles M. INGLIS, Plaintiff and Appellant, v. OPERATING ENGINEERS LOCAL UNION NO. 12, an Unincorporated Association, Ralph B. Bronson, Manuel DeFlumere, Michael Annis, also known as Michael Ennis, also known as Michael Innes, William Waggoner, William Willis, Jr., Anthony Sanders, James Twombley, et al., Defendants, Operating Engineers Local Union, an Unincorporated Association, Respondent. Civ. 25262.
• Court: California Court of Appeals Court of Appeals

Page 187

18 Cal.Rptr. 187

Charles M. INGLIS, Plaintiff and Appellant, v. OPERATING ENGINEERS LOCAL UNION NO. 12, an Unincorporated Association, Ralph B. Bronson, Manuel DeFlumere, Michael Annis, also known as Michael Ennis, also known as Michael Innes, William Waggoner, William Willis, Jr., Anthony Sanders, James Twombley, et al., Defendants Operating Engineers Local Union No. 12, an Unincorporated Association, Respondent.

Civ. 25262.

District Court of Appeal, Second District, Division 1, California.

Dec. 29, 1961.

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 eliminate the necessity of naming individual members of an unincorporated association as defendants; its sole purpose--to remove technical difficulties of procedure and avoid the necessity of complicated and cumbersome prosecutions of many actions. (Jardine v. Superior Court, 213 Cal. 301, 2 P.2d 756, 79 A.L.R. 291; 5 Cal.Jur.2d § 34, p. 501.)

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 the union as a legal entity of a liability which the Taft-Hartley Act imposes upon the union as a legal entity.' (p. 147, 259 P.2d p. 25.)

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...