Cox v. Thee Evergreen Church

836 S.W.2d 167, 1992 WL 148116

• Court: Texas Supreme Court
• Decided: September 9, 1992
• Docket: D-0938
• Status: Published

Opinions

OPINION

HIGHTOWER, Justice.

In this personal injury action, we consider whether a member of an unincorporated charitable association is precluded from bringing a negligence action against the association solely because of the individual’s membership in the association. The trial court rendered summary judgment for the association. The court of appeals affirmed. 804 S.W.2d 190. We reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings.

I.

Karen Cox (Cox) was a member of Thee Evergreen Church (Evergreen), an unincorporated charitable association.¹ Cox had been a member for four years and held a position on Evergreen’s administrative board. On November 4, 1986, Cox dropped her son off at a “mothers day out” program, for which she paid a nominal fee, operated on Evergreen premises by volunteer members of the church.² Upon entering the church, Cox slipped and fell, injuring her back and head. Cox brought an action against Evergreen alleging negligence and gross negligence. The trial court granted a motion for summary judgment filed on behalf of Evergreen on the ground that a member of an unincorporated charitable association lacks standing to maintain an action against the association. The court of appeals affirmed.

Cox argues that a member of an unincorporated charitable association should not be precluded from bringing a cause of action for negligence against the association solely because of the individual’s membership in the association. We agree.

II.

An unincorporated association is a voluntary group of persons, without a charter, formed by mutual consent for the purpose of promoting a common enterprise or prosecuting a common objective.³ Black’s Law Dict. 1531-32 (6th ed. 1990). Historically, unincorporated associations were not considered separate legal entities and had no existence apart from their individual members. See Tunstall v. Wormley, 54 Tex. 476, 481 (1881) (since church was not organized under the corporation act, “it was incapable, as a corporation, of suing or being sued, or of holding real estate; that it had no corporate name or existence ... ”); Burton v. Grand Rapids School Furniture Co., 10 Tex.Civ.App. 270, 31 S.W. 91, 92 (1895, no writ) (“An unincorporated association is no person, and has not the power to sue or to be sued.”); Home Benefit Ass’n No. 3 of Coleman County v. Wester, 146 S.W. 1022, 1023 (Tex.Civ.App.—Austin 1912, no writ) (“[A]n unincorporated voluntary association, organized for charitable and not for business purposes, can neither sue nor be sued in its capacity as an association.”). Because of the lack of a separate legal status, it was generally considered that unincorporated associations could only hold property through the intervention of trustees. See, e.g., O.K.C. Corp. v. Allen, 574 S.W.2d 809, 812 (Tex.Civ.App.—Texarkana 1978, writ-ref’d n.r.e.); Parrish v. Looney, 194 S.W.2d 419 (Tex.Civ.App.—Galveston 1946, no writ). For the same reason, a judgment could not be rendered against such an association. See Methodist Episcopal Church South v. Clifton, 34 Tex.Civ.App. 248, 78 S.W. 732, 734 (1904, writ ref'd).

Consequent to the lack of legal identity, special rules arose concerning liability in actions involving unincorporated associations. In regard to contracts, members incurring the debt on behalf of the association or assenting to its creation were personally liable. See Abrams v. Brent, 362 S.W.2d 155, 159 (Tex.Civ.App.—Austin 1962, writ ref’d n.r.e.); Summerhill v. Wilkes, 63 Tex.Civ.App. 456, 133 S.W. 492, 493 (1910, no writ). In regard to tort actions, member liability depended upon such factors as the nature of the association and the individual member’s involvement in the conduct giving rise to the cause of action. See Golden v. Wilder, 4 S.W.2d 140, 143-44 (Tex.Civ.App.—Fort Worth 1928, no writ). See generally 6 Am.Jur.2d Associations and Clubs § 48 (1963); Annotation, Liability of Member of Unincorporated Association for Tortious Acts of Association’s Nonmember Agent or Employee, 62 A.L.R.3d 1165 (1975).

The rule of law also developed that an unincorporated association was not liable to one of its members for damages occasioned by the wrongful act of another member or agent of the association. United Ass’n of Journeymen and Apprentices v. Borden, 160 Tex. 203, 207, 328 S.W.2d 739, 741 (1959). See also Anderson v. Painters Local Union, 161 Tex. 129, 134, 338 S.W.2d 148, 152 (1960). Such immunity was grounded on the concept that the injured member and the association were regarded as coprincipals, with the tortfeasor as their common agent. The wrongful conduct was thus “imputed” to the plaintiff for purposes of his action against the association. Id. In effect, it was considered that the plaintiff was suing himself. See Brotherhood of Railroad Trainmen v. Allen, 230 S.W.2d 325, 327 (Tex.Civ.App.—Waco 1950, writ ref’d), cert. denied, 340 U.S. 934, 71 S.Ct. 501, 95 L.Ed. 674 (1951); Atkinson v. Thompson, 311 S.W.2d 250, 254 (Tex.Civ.App.—Houston 1958, writ ref’d n.r.e.) (“[A]s a member of the Brotherhood he is jointly responsible with all other members for the actions of the group itself, and accordingly as a principal he has no cause of action against co-principals for the wrongful conduct of a common agent.”). It is this rule of law that Evergreen contends precludes Cox’s claim.

III.

Cox advances three arguments for allowing her to maintain a cause of action. First, Cox argues that the common law principles have been modified by a series of statutes concerning suits by and against unincorporated joint stock companies and associations. See Tex.Rev.Civ.Stat.Ann. arts. 6133-6138 (Vernon 1970) (entitled “Unincorporated Joint Stock Companies”). Article 6133 provides:

Any unincorporated joint stock company or association, whether foreign or domestic, doing business in this State, may sue or be sued in any court of this State having jurisdiction of the subject matter in its company or distinguishing name; and it shall not be necessary to make the individual stockholders or members thereof parties to the suit.

Id. at art. 6133. Articles 6134-6138 provide a method of citation and establish rules regarding liability of association members for adverse judgments. Id. at arts. 6134-6138.⁴

We must determine whether articles 6133-6138 are applicable to unincorporated charitable associations. In Realty Trust Co. v. First Baptist Church of Haskell, 46 S.W.2d 1009 (Tex.Civ.App.—Eastland 1932, no writ), the court held: “[I]t is our opinion that the article has no application to an unincorporated religious society. It is not a joint stock company or association doing business in this state.” Id. at 1010. See also Gribble v. Call, 123 S.W.2d 711, 715 (Tex.Civ.App.—Eastland 1938, writ dism’d judgmt cor.) (restating Realty Trust holding that article 6133 only applies to those unincorporated associations “doing business in this state”); San Antonio Fire Fighters’ Local Union v. Bell, 223 S.W. 506, 508 (Tex.Civ.App.—San Antonio 1920, writ ref d) (language of statute implies intent to confine application to matters of business). See also Minton v. Leavell, 297 S.W. 615, 622 (Tex.Civ.App. — Galveston 1927, writ ref'd). We find these cases persuasive, and conclude that articles 6133-6138 do not apply to unincorporated charitable associations.

Cox next looks to rule 28 of the Texas Rules of Civil Procedure.⁵ Rule 28 has been interpreted as treating unincorporated associations as legal entities, at least to the extent of obtaining and enforcing judgments against them. See, e.g., Darrett v. Church of God In Christ No. 1, 381 S.W.2d 720, 722 (Tex.Civ.App.—Texarkana 1964, writ ref'd n.r.e.) (stating that rule 28 appears broad enough to give an unincorporated religious association a “procedural right to bring an action in its common name to enforce a substantive right”); Post No. 581, American Legion, Dep’t of Texas v. Department of Texas, American Legion, 290 S.W.2d 712, 715 (Tex.Civ.App.—Fort Worth 1956, no writ). The court of appeals correctly recognized the effect of this rule when it held: “Pursuant to rule 28, members of an unincorporated religious association may be sued or prosecute their claims, as to third parties, under the association’s assumed name as a legal entity.” 804 S.W.2d at 191. There can be no doubt that, at least to the extent of obtaining and enforcing judgments against them, rule 28 treats unincorporated associations as legal entities. This conclusion, however, does not complete our inquiry. Rule 28 generally does not affect substantive rights. See Tex.R.Civ.P. 815. As previously discussed, under the substantive law as it presently exists, Cox is precluded from asserting her claim. For this reason, rule 28 alone is not determinative.

Lastly, Cox argues that the common law principle precluding her from bringing a negligence action solely because of her membership in the association should be abolished. We agree.⁶

As discussed above, an unincorporated association was historically not liable to one of its members for damages occasioned by the wrongful act of another member or agent of the association. See Borden, 328 S.W.2d at 741. This court, however, has recognized various situations in which membership alone is an insufficient reason to preclude a member of an unincorporated association from asserting a cause of action against the association. In Borden, we held that the wrongful act of an unincorporated association will not be imputed to the injured member when the act is committed in the course of an undertaking strictly adverse to the member’s interests. Borden, 328 S.W.2d at 742. Noting that the rights and liabilities of the parties depend upon the relationship existing at the time the wrongful act is committed, we based our holding on the agency rule that a principal is not liable for the torts committed by an agent acting adversely to him. Id. We also stated in Borden that the wrongful act will not be imputed when the association conspires to bring about or ratifies the wrongful conduct. Id. at 744-45. We did not, however, go so far as to say that liability would not be imputed when the injury was the result of the association’s negligence. Id. at 742, 745.

Since Borden, this court has refused to apply the “imputed negligence doctrine” in other contexts, including situations involving ordinary negligence. In Shoemaker v. Estate of Whistler, 513 S.W.2d 10 (Tex.1974), a passenger co-owner was killed in the crash of a small plane, piloted by another co-owner, engaged in a voluntary Civil Air Patrol search mission. Id. at 12. We rejected the joint enterprise doctrine and refused to impute the negligence of the pilot co-owner to the passenger co-owner when at the time of the crash the co-owners did not have a business or pecuniary purpose. Id. at 16-17. We noted “there is not the same reason for imposing liability in the non-commercial situations which are more often matters of friendly or family cooperation and accommodation.” Id. at 17. We also stated that “[b]y limiting the application of the doctrine to an enterprise having a business or pecuniary purpose, we will henceforth be avoiding the imposition of a basically commercial concept upon relationships not having this characteristic.” Id. See also Rollins Leasing Corp v. Barkley, 531 S.W.2d 603, 605 (Tex.1975) (bailee’s contributory negligence not automatically imputed to bailor).⁷

Guidance is also found in Dutcher v. Owens, 647 S.W.2d 948 (Tex.1983), a case in which a question arose regarding the allocation of liability among co-owners of a condominium complex for tort claims involving the common areas of the complex. Id. at 950. In disposing of a common law rule making co-owners wholly liable for any injury, we stated:

[T]o rule that a condominium co-owner had any effective control over the operation of common areas would be to sacrifice “reality to theoretical formalism,” for in fact a co-owner has no more control over operations than he would have as a stockholder in a corporation which owned and operated the project.

Id.

Finally, numerous other jurisdictions have recently considered whether the negligence of an unincorporated association, charitable or otherwise, should be imputed to an injured member so as to preclude a cause of action by the member against the association. Although some states continue to find themselves bound by the original common law rule,⁸ others have recognized the arbitrary result to which it leads and have abrogated its application.⁹ See Buteas v. Raritan Lodge, 248 N.J.Super. 351, 591 A.2d 623, 628 (1991) (“[T]he imputed negligence doctrine barring suit by a member against the association itself is based on an obsolete legal fiction whose time has long since passed.”); Crocker v. Barr, 409 S.E.2d 368, 372 (S.C.1991) (“We hold that ... an unincorporated association, regardless of its underlying purpose, is amenable to suit by its members for tortious acts.”); Furek v. University of Delaware, 594 A.2d 506, 513 (Del.1991) (suit by fraternity pledge brought under statute allowing suits against unincorporated associations and allowing judgment against association property); Tanner v. Columbus Lodge No. 11, 44 Ohio St.2d 49, 337 N.E.2d 625, 627 (1975) (“[A] member of an unincorporated association may maintain an action against the association for personal injuries resulting from the negligent acts of its agents_”); White v. Cox, 17 Cal.App.3d 824, 95 Cal.Rptr. 259, 261 (1971) (“[W]e conclude that unincorporated associations are now entitled to general recognition as separate legal entities and that as a consequence a member of an unincorporated association may maintain a tort action against his association.”). See also Annotation, Recovery by Member from Unincorporated Association for Injuries Inflicted by Tort of Fellow Member, 14 A.L.R.2d 473 (1950).

IV.

So what remains of the early common law rules regarding unincorporated associations and the imputed negligence doctrine? Apparently, very little. We allow suits by and against unincorporated associations in their own name. See Tex.R.Civ.P. 28. We allow nonmembers to bring suits, including those for negligence, against unincorporated associations. See Golden, 4 S.W.2d at 143-44. We allow members to sue unincorporated associations for acts committed that are strictly adverse to the member’s interests. See Borden, 328 S.W.2d at 742. We allow members to sue unincorporated associations when the association conspires to bring about or ratifies the wrongful conduct. See Id. at 744-45. We refuse to apply the imputed negligence doctrine in the analogous joint enterprise context when there is no business or pecuniary purpose. See Shoemaker, 513 S.W.2d at 16-17. And lastly, a number of states allow suits against unincorporated associations by their members for injuries resulting from the association’s negligence. See, e.g., Buteas, 591 A.2d at 628. Nevertheless, one vestige of the common law survives — our obedience to an ancient precept automatically imputing the negligence of an unincorporated association to an injured member. Considering the development of the law in regard to our treatment of unincorporated associations, see Tex.R.Civ.P. 28, Borden, 328 S.W.2d at 742, combined with our refusal to apply the imputed negligence doctrine in other contexts, see, e.g., Shoemaker, 513 S.W.2d at 16-17, we perceive no compelling reason for retaining this remnant of the original common law rules. In this regard, we share the concerns expressed by the South Carolina Supreme Court when it stated:

Why should a church member be precluded from suing an association in tort when a paid workman would be allowed to maintain an action for the very same injury?

Crocker, 409 S.E.2d at 371. We also are unable to discern a defensible reply to this query. Consequently, we hold that a member of an unincorporated charitable association is not precluded from bringing a negligence action against the association solely because of the individual’s membership in the association. Any assets of the unincorporated charitable association, held either by the association or in trust by a member of the association, may be reached in satisfaction of a judgment against the association.¹⁰

For these reasons, we reverse the judgment of the court of appeals and remand this cause to the trial court for further proceedings.

Concurring opinion by COOK, J., joined by HECHT, J. Dissenting opinion by GONZALEZ, J.

1 . In this case, it is undisputed that Evergreen was an unincorporated association. Thus, an issue regarding what constitutes an unincorporated association is not before the court. Our use of the term “unincorporated charitable association" in this cause is not limited to a “benevolent” or "philanthropic” organization. We use the term to refer generally to unincorporated associations including but not limited to those associations organized and operated for charitable, religious, recreational, or educational purposes, as well as any other bona fide nonprofit association organized and operated for the promotion of social welfare by being primarily engaged in promoting the common good and the general welfare of the people in a community. However, the term "unincorporated charitable association" does not apply generally to unincorporated associations organized or conducted for business or profit.

2 . The program was operated by Evergreen in the church educational building. Although the building itself was owned by the United Methodist Church, Evergreen appears to have been in exclusive control of the premises and Cox asserts her claim only against Evergreen.

3 .Unincorporated associations long have been a problem for the law. They are analogous to partnerships, and yet not partnerships; analogous to corporations, and yet not corporations; analogous to joint tenancies, and yet not joint tenancies; analogous to mutual agencies, and yet not mutual agencies. See H. Oleck, Nonprofit Corporations, Organizations, and Associations, § 320 (4th ed. 1980). An early treatise on the subject noted that the number of unincorporated associations in Texas had multiplied unduly and that because of the "unsavory character” of many, the "lower courts of that state have divided in opinion, while awaiting a clear-cut expression from their highest court.” See S. Wrightington, Unincorporated Associations and Business Trusts, (2d ed. 1923) (discussion in preface to second edition).

4 . The courts of appeal reach diverging conclusions regarding whether articles 6133-6138 clothe all unincorporated associations with separate legal existence. Some have held that under these articles, unincorporated associations constitute separate legal entities. See Jones v. Maples, 184 S.W.2d 844, 847 (Tex.Civ.App.— Eastland 1944, writ ref’d); Mood v. Methodist Episcopal Church South, 289 S.W. 461, 464 (Tex.Civ.App.—Eastland 1926), aff’d, 296 S.W. 506 (Tex.Comm’n App.1927, holding approved); Brotherhood of Railroad Trainmen v. Cook, 221 S.W. 1049, 1051 (Tex.Civ.App.—Amarillo 1920, writ refd). Others, however, do not conclude that the statute has such an effect. See, e.g., Mayhew & Isbell Lumber Co. v. Valley Wells Truck Growers’ Ass'n, 216 S.W. 225 (Tex.Civ.App—San Antonio 1919, no writ). We disapprove any language in these cases contrary to this opinion.

5 . Rule 28 provides, in pertinent part: "Any ... unincorporated association ... may sue or be sued in its ... common name for the purpose of enforcing for or against it a substantive right_” Tex.R.Civ.P. 28.

6 . Because we are not directed by legislative enactment, the common law controls. See Lindner v. Hill, 673 S.W.2d 611, 616 (Tex.App.—San Antonio 1984), aff’d, 691 S.W.2d 590 (Tex.1985). In appropriate limited circumstances, this court has recognized the need to modify the common law. See Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex.1983) (discussing cases in which "antiquated doctrines" have been abolished in “response to the needs of a modern society"). Additionally, since our resolution of this question depends upon rights and liabilities existing under the common law, an area that is our special domain, the result we reach today is not a usurpation of the legislative prerogative. See Dutcher v. Owens, 647 S.W.2d 948, 951 (Tex.1983).

7 . In their treatise, Prosser & Keeton discuss the doctrine as follows:

"Imputed contributory negligence” has a very bad name of its own, because of a group of quite unreasonable and rather senseless rules which were at one time applied to defeat the recovery of the injured plaintiff by imputing to him the negligence of another, even though he would not have been at all liable for that negligence as a defendant_ Except for vestigial remnants which are at most mortibound historical survivals, "imputed contributory negligence" in its own right has now disappeared.

W. Prosser & P. Keeton, The Law of Torts, § 74, at 529-30 (5th ed. 1984).

8 . See Foster v. Purdue University Chapter, The Beta Mu of Beta Theta Pi, 567 N.E.2d 865, 870 (Ind.Ct.App.1991) (fraternity pledge rendered quadriplegic after using a waterslide had no cause of action pursuant to "general rule”); Zehner v. Wilkinson Memorial United Methodist Church, 399 Pa.Super. 165, 581 A.2d 1388, 1389 (1990), appeal denied, 527 Pa. 637, 592 A.2d 1304 (1991) (stating rule); Calvary Baptist Church v. Joseph, 522 N.E.2d 371 (Ind.1988) (recognizing that some exceptions should exist to avoid sacrificing reality to theoretical formalism, but refusing to create exception for church); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 708 (Wyo.1987) (actor involved in mock gunfight had no action against club or members for negligence of club).

9 . States having abrogated the doctrine have generally premised their holdings on explicit statutory schemes recognizing unincorporated associations as separate legal entities. However, the policy reasons they articulate are no less compelling when no such statute is applicable.

10 . Cox asserts her claim only against Evergreen and not against the individual members of the church. Consequently, we need not address the issue of member liability. We also note that Cox’s injuries occurred in 1986. Thus, the Charitable Immunity and Liability Act of 1987 does not apply. See Tex.Civ.Prac. & Rem.Code Ann. §§ 84.001-.008 (Vernon Supp.1992). In cases, however, in which the Act is applicable, charitable organizations, as specifically defined by the Act, can effectively insulate themselves from liability by maintaining the statutorily required levels of insurance. Id. Of course, protection is also afforded by the simple act of incorporation.