Thomas v. Dean

• Decision Date: 21 October 1968
• Docket Number: No. 5--4626,5--4626
• Parties: , 70 L.R.R.M. (BNA) 2231 Juanita THOMAS, Appellant, v. Raymond DEAN et al., Appellee.
• Court: Arkansas Supreme Court

Page 771

432 S.W.2d 771

245 Ark. 446, 70 L.R.R.M. (BNA) 2231

Juanita THOMAS, Appellant, v. Raymond DEAN et al., Appellee.

No. 5--4626.

Supreme Court of Arkansas.

Oct. 21, 1968.

Sam Sexton, Jr., Ft. Smith, for appellant.

McMath, Leatherman, Woods & Youngdahl, Little Rock, for appellee.

BYRD, Justice.

The issue on this appeal is whether an action at law, as distinguished from an action in equity, may be brought against an unincorporated association or club pursuant to Ark.Stat.Ann. § 27--809 (1962 Repl.). That statute provides:

'Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring all before the court within a reasonable time, one or more may sue or defend for the benefit of all.'

Appellant Juanita Thomas brought this action for tort damages against Raymond Dean, Wilma Hill, Patsy Bowles, Pearl Taylor, Tressie Cook, Harlena Legg, Champ King, Ruth Perkins and Herbert Bingaman, individually, and as representatives of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW-AFL-CIO) and Local 716. With respect to the union, she alleged that the members were too numerous to be sued individually and that the union should be brought in on a class action. She alleged that Herbert Bingaman, International Representative; Raymond Dean, President of Local 706; Wilma Hill, Secretary of Local 706; and Patsy Bowles, Pearl Taylor, Tressie Cook, Harlena Legg, Champ King and Ruth Perkins were members of the union and as such afforded adequate representation of the union as a class.

The defendants demurred upon the ground that there was a defect of parties defendant. After a non-suit was taken to the individual liability of the named defendants, the trial court sustained the demurrer as to the union and dismissed the complaint.

The right of an unincorporated association to sue or be sued in a class action has been before this court in Baskins v. United Mine Workers, 150 Ark. 398, 234 S.W. 464 (1921); District No. 21, United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S.W. 546 (1925); Smith v. Arkansas Motor Freight Lines, 214 Ark. 553, 217 S.W.2d 249 (1949); and in Massey v. Rogers, 232 Ark. 110, 334 S.W.2d 664 (1960).

In Baskins, suit was brought against a union in its society or organizational name for the alleged negligent killing of John Baskins. We there held only that such an action could not be maintained against a union in its society or organizational name. In so doing, we pointed out that Ark.Stat. § 27--809, supra, being § 33 of the Civil Code, was not applicable since no attempt had been made to comply with it.

In Bourland, we construed the action as one in tort for unliquidated damages over which chancery had no jurisdiction and held that the doctrine of virtual representation was unavailable as a method of obtaining service in a case in equity where there was no jurisdiction of the subject matter.

In Smith, the union, by its president and secretary on behalf of themselves and its other members, filed an action to compel specific performance of an agreement in which Arkansas Motor Freight Lines, Inc., had agreed not to retain non-union employees for more than 30 days. The trial court dismissed the union's complaint on the basis that the president and secretary as representatives of a class lacked the capacity to sue. In reversing we said:

'We think the union officials could properly bring a representative action, without joining all members of the organization. Such a suit is authorized when the parties are numerous and it is impractical to bring all before the court. 3 Ark.Stats.1947 § 27--809. While we have not passed upon this particular question, it is generally held that suits by or against unincorporated labor unions may be cast in representative form.'

The Rogers case was a suit by the trustee in bankruptcy for Leach-Rogers Funeral Home, Inc., against the Frank Leach Burial Association, an unincorporated association, for $3,225.00 alleged to be due to the funeral home. We reversed the trial court in dismissing the complaint and held that such a cause of action could be maintained as a class action.

Appellant points to § 780 of the Civil Code (Ark.Stat.Ann. § 27--102 (Repl.1962)), which provides that the Civil Code 'shall regulate the procedure in all civil actions and proceedings in the courts of this state', and argues that by the very terms of the code, the provision for class action is applicable to an unincorporated association both at law and in equity. Appellee argues that the doctrine of...