*1 trier of fact to hear and listen to such prevent-
statements. When the accused is CALVARY BAPTIST CHURCH OF ed stating court from predicates his MARION, INDIANA, Petitioner, stand, innocence from the jury and the is going aware that it not to hear what JOSEPH, Respondent. James O. accused say, wishes to there is a severe impact adverse on the manner in which 27S04-8804-CV-420. both accused jury and the views the Court Indiana. fairness of the procеedings, and an adverse impact on the potential rehabilitative of the April 26, 1988. accused. This is a serious matter indeed when the simply accused express wishes to orally
himself manner, under oath in a civil
and is restrained. upon
Based strength language above,
considered unique value places
which it upon the desire of an indi-
vidual when confronted reality with the
his actual trial charges, per- criminal
sonally speak give out and his version of story conclude, the court and jury, I
as I my did in concurring opinion in Bowen
v. State 263 Ind.
691, that a inevitably upon trenches right of the accused to testify, when it
applies the exclusionary sanction of the
alibi statute prevеnt so as to the accused standing empty trial, handed at
personally testifying in oral form that he
was not at the scene of the crime but was place.
instead at another In this trial situa-
tion, I strong find constitutional bias in permitting
favor of personal testimo-
ny of the accused. furthermore, And I
would assess the prosecu- interests
tion at stake in this trial situation at about
the same level I that would assess the
interest of the in having State advance
notice that the defendant going is testify
at all on his own behalf so that it could
prepare him, itself to impeach which is to
say, potatoes. small
mary judgment accordingly vacates the appeals opinion of the court of and affirms the trial court. dispute. July
The facts are not in On Joseph, a deacon of the Calva- James Church, ry Baptist and several other helping repair church members were building. of The roоf was roof portion. upper into an and lower divided working portion Joseph was on the lower fellow Wofford. An- with member Willie member, Green, Al re- other church sponsible keeping supplied for the roofers shingles. Periodically with Green moved the ladder the roofers used to ascend to the shingles roof so he could deliver workеrs The he who needed them. last time moved thought the ladder he it felt "uncomforta- up. he set it After the men ble" when time, they agreed for some to take worked break,. Joseph stepped a onto the ladder began Joseph to fall. fell onto a and it concrete sidewalk. He broke his heel and Harker, Osborn, Kiley, Kiley, Albert C. possible injuries suffered internal as a re- Certain, Marion, Harker, pe- Michael & for sult of the fall. titioner. appeals of conceded the com- court McTavish, Guerrero, Bruce A. Guerrero rule, mon law substantive followed Guerrero, Marion, respondent. & for majority jurisdictions, of is that a member unincorporated injured of an associаtion PIVARNIK, Justice. due to the tortious conduct of another petition This on cause comes to us cannot sue the association. How- member from the Fourth of transfer District Court ever, appeals, relying court Appeals. Joseph (Joseph) Plaintiff James O'Bryant Foreign Wars Veterans brought against action the trial court (1978), (church) pеr Church for rejected found Indiana had that rule. injury alleged he sonal suffered due to plaintiff brought an O'Bryant, negligent conduct of a fellow church mem Foreign action Veterans setting up ber a ladder. The trial court Wars, unincorporated granted summary judgment for the church member, seeking damages which was Joseph appealed. аppeals The court of bodily injury allegedly for caused granting summary judg reversed negligence. did association's As the record ment, finding there were material issues of negligent not disclose the nature of the determined, finding fact to that all proximate conduct claimed as the cause of unincorporated including associations - - O'Bryant's injury, appeals the court of stat- to suit their churches are amenable ed: Joseph for acts. tortious v. Cal obviously attempts present only It vary Baptist Ind.App., 500 Church question of whether a member brought N.E.2d abstract 250. Petition to transfer is church, of an association can claiming ap the court of peals erred in maintain an action the associa- interpreting applying subject, bodily injuries allegedly prox- Indiana law on tion This court properly finds the trial en- entered sum- imate result of a gaged in some activity on behalf of the member of a class in an appropriate ac- under circumstances (Rules tion 23.2). 23 and would make the association liаble were The court of appeals in O'Bryant found plaintiff not a member the associa- that since these rules were adopted by the tion. We shall question answer the with legislature supreme court, pausing out to consider whether it is could be effective as procedural rules of properly presented. law as well as rules of substantive law and *3 change therefore O'Bryant, substantive Ind.App. 510, 176 law to at authorize a member of an at 521. sue and recover from the association in The trial court in O'Bryant found that tort. O'Bryant, 513, 176 at 376 under no circumstances can a member of N.E.2d at 523. The O'Bryant court rea an unincorporated association sue the asso- soned thаt the association then became a ciation for negligence. The rationale fol- separate and entity distinct per lowed by the trial court was that an unin- sons who were the members. Id. "As corporated association, like part- a business such artificial they entities can serve as the nership, legal has no entity or existence principals of officers, their agents, and em apart from its members. It cannot sue or ployees without need to resort to the fiction be sued in its own name but in the that the members of the association are the names of partners its or members. Its principals." 2d. engaged members are in joint enterprise reject We such a application broad in which each member has legal right of these rules and expressly overrule to exercise control over operation O'Bryant. 17(B) (E) Trial Rules and were association, thus each member as to each directed to the suability of unincorporated other member is principal both agent and in pаrties. associations as We do not see that involving matters the association's activi- it was the legislature intention of the nor
ties. in authorizing these rules to this O'Bryant was based primarily on change the substantive rule of non-liability 17(B) Indiana Trial Rules 17(E). Trial of associations to members for torts com Rules (E), were by enacted by mitted other members. Trial Rule 1969 sеssion of the General Assembly and "Parties," titled covers whether particu adopted later change without by order of party lar has the capacity to sue or be Indiana Court, effective Janu- sued. It defines may who party plain be a ary provide: These rules tiff or defendant and addresses in subsec 17(B) Capacity to sue (B) or be (E) suеd. tions partnerships and unincor capacity of a party to porated sue or be sued associations. Trial Rule 17 is an shall be determined by the law of extension of early equity principles, stat state, including utes, rules, its conflict except providing rules for uninecorporat- that a partnership or ed associations to аs- sue or be sued in their sociation may sue or own name. be sued in its com- mon name. The strict common law rule was 17(E) Partnerships and unincorporated that an unincorporated association could associations. A partnership or an unin- not sue or be sued in its association name corporated sue or be as it did not exist еntity as an outside its in sued its common name. A judgment membership. Action had to be maintained against or the partnership or unineor- by the individual members. porated association 'shall orga- bind the This many problems and varied nization' as it were an entity. A dependent on the association, nature of if money judgment against the partnership its size demоnstrated the number of its or unincorporated association shall not members, the relationship any individual bind an partner individual or member member had to control the activities of the unless he is named as a party or as a ability to discover who 374 might complaint, ques- ed in the and when the and where members were impact of this strict found. The harsh tion is one of a common or inter- in a procedural
common rule resulted many persons, par- law est of where arising equity parties rep doctrine impractical are numerous and it is ties adherence resentation cases where strict court, bring them all before the one would defeat the to the common law rulе for the more sue or defend benefit rights. equitable enforcement of whole. its discussing equitable In doctrine and Hicks, In suit the interna- Colt v. conditions, present day Chief application to engineers operating tional union of steam Taft stated Mine Justice United Work pursuant approved by this court to this U.S. ers Coal Co. 259 v. Coronado Romine, action statute. Slusser v. 388-389, 570, 575-576, S.Ct. owing attorney an for fees due and from a L.Ed. 986: contract with the Order of Owls found ser- if organiza- It would be unfortunate representatives vice on the local officers as great power as this Interna- tion with as *4 organization of the the Or- suitable where raising large in tional Union has organiza- der of Owls was found to be directing in funds аnd the conduct having chapters called in tion local "nests" in four hundred thousand members States, various states of the United in oth- on, carrying territory, in a wide industri- office, er countries and its national called strikes, al controversies and out of which nest, in the home another state. injury private rights so much unlawful to possible, could its to is assemble аssets Notably these authorities set out ex liability be used therein free from for ceptions general regarding to the rule sua- injuries by in torts committed course of bility expressly of associations did not persons injured such strikes. To remand change general rule of the nature of an 400,000 a suit each of the association that did not meet of members damages levy members to recover and to exceptions. the structure of the The focus fund, on his share of the strike would be exceptions suability of the was on the to leave them remediless. by in these associations their own name or Legislatures, including the Indiana Gen representation plaintiff or either as defend Assembly, resрonded equitable eral to this ant. authorizing by by doctrine suits (E) brought Trial Rules thus against representative persons. The inten problem provided that an full circle and incorporate in tion was to the code the including unincorporated Calva- equitable procedure rule of which autho Baptist in ry Church could be sued its own against representatives rized suits change general name. This did not unincorporated of the members of an asso Indiana, rule in still adhered to most large persons. ciation of a number of (1936), 25, jurisdictions, that members of an unincor- Ind.App. v. 102 Slusser Romine 731, 734; (1982), porated sue the 200 association cannot associa- N.E. Colt v. Hicks 177, 188, 335, 340, tion for tortious acts of one or more of its 97 179 N.E. Thus, theory general trans. denied. Burns Indiana members. The rule Stat provided utes Annotated 1933 in 2-220 is that the of an § (277); engaged joint in a enter- are in prise. negligence of each member in interest-Joining
Persons united as prosecution enterprise imput- of that is plaintiffs defendants-Exception- or every so able each and other mеmber may one par- When sue for all. Of the action, that the has suffered dam- ties in member who those who are united in ages through the tortious conduct of anoth- joined plaintiffs interest must be as defendants; but, may if er member of the association not re- anyone the consent of from for dam- joined plaintiff who should have been as covеr the association obtained, age. person suing cannot made a It would be akin to the defendant, being the reason thereof stat- himself as each member becomes both
375 affairs, agent all other mem- its principal clearly and an as to we find it demonstrated group question itself. that no such in bers for the actions of the regаrd Calvary Baptist to the Church and exception An rule had this its members. recognized case in been a case basis The evidence showed without conflict jurisdictions necessary to some as avoid that Church was a sacrificing reality to theoretical formalism. community congregational existing church Longshore Marshall International in the of its Their members. (1962), mens and Union Warehousemens purpose associating worship towas God Cal.Rptr. 22 P.2d 57 Cal.2d by providing spiritual stewardship and to 987; App.3d v. Cox 17 Cal. White receive the benefits to themselves of the Marshall, Cal.Rptr. teachings uplifting of Jesus Christ recognized California Court members, spiritual of their needs. The large exception in the case of a internation through the maintained them- Although al labor union. the court Mar including building selves exception apply in shall indicated the they worshipped. The resources large unincorporated the case of associa used for endeavor were the contribu- unions, in their tions akin structure labor offerings tions or free will made opinion the court nevertheless limited the giving money members in the form of to the union. The labor test set out services, repairs such as to the roof of the breaking the veil of the structure of the building by congregation the men of the (1) unincorporated association was: wheth when this incident occurred. The evidence possesses separate er the association le by deposition before the trial court was members, gal (2) existence its *5 Foard, Roy Reverend L. a minister at the whether the members retain direct control church, stated, Calvary who "The men of operations over the of the association. leaking the church ... decided was and we Marshall, Cal.Rptr. at 371 P.2d at put decided should a roof we on. We didn't White, the California Court of on, money put have the to it so men ... Appeals looked to the nature of the associa going were to do it." The men of the tion, applicable scheme, statutory congregated church who to do this included and to the role of thе Joseph, James who was a deacon and there- compared corporation association as with a fore a member of the church's board. exception general when it created an to the presented can No fact be that would be non-liability jurisdictions rule. Other have in conflict with the clear indication of these followed rationale of and Mar White repairing facts. The men the church roof regard unions, finding shall with to labor among composed were those who that the member and the association are joint enterprise for church and were on a represents distinct since union the com purposes. each and аll of their No infer- group mon or interest of the members as ence is which it could be from distinguished personal private from their separate determined that the church was a organized interest. The institutional activi members, giving entity any one of the ty of the international union contrasts with a member status to sue tort. The testi- wholly activity individual of the mеm Wilson, mony by deposition of Reverend bers. See United States v. White Church, the Pastor of did 322 U.S. 64 S.Ct. 88 L.Ed. not conflict with this conclusion. He stated 1202; Marshall, supra. 152 A.L.R. encouraged Joseph and others enter Although recognize we the wisdom premises on the church to further church applying exception of to the rule purposes, namely provide а new roof for large unincorporated in the case of associa the church. This his conclusion tions such having as labor unions a hier exhorting as to what the effect of his archy drastically changes of structure that might Further, of the men have. there is relationship membership of anything associa no evidence Reverend Wilson was tion and the employed by control that a member has in more than a minister ation or a member should fore- spiritual church as a leader and teacher fellow be management provision, or control closed. In the of such a position held no absence I membership or maintenance do not believe that mere cаn business affairs reasonably regarded constituting building. the church be as right. such consent or Under waiver opinion of the accordingly vacate the We case, grant my summary view of this court. appeals court of and affirm trial judgment by the court should trial be set aside the case remanded further C.J., GIVAN, J., SHEPARD, proceedings. consistent concur. DeBRULER, J., dissents with
separate opinion. J.,
DICKSON, participating. not Justice,
DeBRULER, dissenting.
I Rules read Indiana's Trial
17(E) mandating unincorporated as- as that otherwise,
sociations, religious be HENLEY, Tony Appellant any other Lee now be sued as (Defendant below), legal entity, judgment may and that a taken associa- Baptist Calvary tions. If the Church in Indiana, Appellee STATE is the common name of an unin- case (Plaintiff below). corporated religious it is sub- ject to a suit and civil will bound No. 49S00-8701-CR95. judgment it in that name as corporations. case of natural Court of Indiana. ques- This of course does not answer the May2, 1988. tions of sue the church and who what for. duty
The definition of the tort of a *6 duty
church to its members and the of one pro
member to another member should be
foundly effected the manner
they have chosen to structure their rela
tionships. legal obligations The of a not-for-profit operating corpo
church as a ordinarily
ration to its members would be
governed by the Indiana Not-For-Profit
Corporation Act of and the charter of obligations corporation. of a operating voluntary as a religious purposes to its members governed by
would I.C. 23-10-2-1 to
-22, by-laws and the constitution and by-laws
association. If charter or set of reasonably
can construed to mean that
by taking up membership in an assuming consents to the risk of injury through the conduct of fel
tortious employees of the associa
low members
tion, activities, engaged in association when
then a suit a member the associ-