Marshall v. Intern. Longshoremen's and Warehousemen's Union Local 6, Dist. 1

• Citation: 17 Cal.Rptr. 343
• Court: California Court of Appeals
• Decision Date: 04 December 1961
• Parties: Hope MARSHALL, Plaintiff and Appellant, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOCAL 6, DISTRICT ONE, an unincorporated Association, Defendant and Respondent. Civ. 19966.

Page 343

17 Cal.Rptr. 343

Hope MARSHALL, Plaintiff and Appellant, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOCAL 6, DISTRICT ONE, an unincorporated Association, Defendant and Respondent.

Civ. 19966.

District Court of Appeal, First District, Division 3, California.

Dec. 4, 1961.

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 negligently placed platform); Koogler v. Koogler (1933), 127 Ohio St. 57, 186 N.E. 725 (negligent maintenance of fire escape); Roschmann v. Sanborn (1934), 315 Pa. 188, 172 A. 657 (negligent operation of bus); De Villars V. Hessler (1950), 363 Pa. 498, 70 A.2d 333, 14 A.L.R.2d 470 (steam table exploded); and Carr v. Northern Pac. Beneficial Ass'n (1924), 128 Wash. 40, 221 P. 979 (negligent selection of a physician and negligent treatment of plaintiff).

Since 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 App.Div. 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 though not for the purposes of an action against the tortfeasor member himself.' (14 A.L.R.2d 473-474.)

The reasoning for the rule, as given in the American Law Reports note,...