Bobe v. Lloyds

• Decision Date: 01 February 1926
• Docket Number: No. 135.,135.
• Parties: BOBE v. LLOYDS et al.
• Court: U.S. Court of Appeals — Second Circuit

10 F.2d 730 (1926)

BOBE v. LLOYDS et al.^*

No. 135.

Circuit Court of Appeals, Second Circuit.

February 1, 1926.

William Otis Badger, Jr., of New York City (Paul D. Compton and Milo Otis Bennett, both of New York City, of counsel), for plaintiff in error.

Barry, Wainwright, Thacher & Symmers, of New York City (Herbert Barry, James K. Symmers, and Archibald G. Thacher, all of New York City, of counsel), appearing specially for Lloyds.

Before ROGERS, MANTON, and HAND, Circuit Judges.

MANTON, Circuit Judge.

The plaintiff in error brings this action to recover insurance she said she obtained for the loss of a diamond bracelet. She sues Lloyds, a corporation, as treasurer of Lloyds Underwriters' Syndicate No. 670 and Lloyds Underwriters' Syndicate No. 671, alleging in her complaint that each syndicate consisted of more than seven persons and that each syndicate was transacting business as an unincorporated association within the state of New York. The action was commenced in the state court and has been removed here. The defendants in error appeared specially and moved successfully to set aside the service of the summons and complaint. A binder was issued on September 5, 1924, by the American Agency Association, Inc., a New Jersey corporation, having a New York office for transacting business. It is joined as a defendant under the authority of section 213 of the New York Civil Practice Act, which provides for the joinder of defendants where the plaintiff is in doubt against whom his cause of action lies. The theft occurred 10 days after the binder was issued.

The motion attacking the validity of the service of process is made upon the complaint and affidavits submitted by both sides. The complaint alleged that Lloyds, a corporation, acted in the transaction in the capacity of treasurer of each syndicate, that is to say, of a fund of not less than $10,000 in trust for the policy holders of said syndicate, and that such fund is made up of initial deposits made by each syndicate at the time it was originally constituted; further, of original guaranties deposited from time to time by the syndicate with its said treasurer, and of premiums received from time to time by Lloyds for and on behalf of the syndicates, which premiums were paid on policies of insurance issued by the syndicates; further, that it was the duty and function of Lloyds, acting in its capacity as treasurer, to administer these funds against losses accruing on said policy, that no part of the fund has been applied to the loss of the plaintiff in error and such payment has been demanded. It alleges that on the 5th of September, the American Agency Association, Inc., assuming to act as agent on behalf of each syndicate, made, executed, and delivered a binder of insurance, which is designated and entitled "covering note," wherein and whereby Underwriters' Syndicate No. 670 and Underwriters' Syndicate No. 671, therein designated as "Lloyds," agreed to insure, and did insure, plaintiff, therein designated as "your good self," in the sum of $10,000, upon certain jewelry therein designated. There is an allegation of authority and power on behalf of the agency, the payment of the premium to it, and fulfillment of the necessary covenants of notice of loss and obligation of each syndicate, and damages are demanded in the sum of $10,000.

Service was made upon Lloyds as treasurer by delivering a copy of the summons and complaint on the managing agent of the corporation within the state. Service of such process may be made within the statute of the state, if made upon the president or treasurer of an unincorporated association. Section 13 of the state General Associations Law (Laws N. Y. 1920, c. 915 Consol. Laws, c. 29) provides that an unincorporated association may be sued to recover any property "upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association within the meaning of this section."

The theory of the action as set forth in the complaint sufficiently describes each syndicate as an underwriting group which authorizes the issuance of the binder, and sufficiently describes each syndicate as an association within the contemplation of this state statute. The affidavits support these allegations. But we must be guided by the complaint in testing the sufficiency of the allegations as to whether or not the defendants are sued as an association within the meaning of the state statute. That sets forth that the corporation of Lloyds was constituted trustee for the benefit of the guaranty and on behalf of those of the underwriting syndicate in respect of its engagements in that capacity. It appears by the affidavits that premiums were paid into trust accounts and are retained under special deeds of trust.

A question is presented whether Lloyds should be considered as an entire organization for the purpose of carrying on an insurance business, or whether it should be held that there are two separate and distinct entities involved, the corporation, on the one hand, and the underwriting members, on the other, and that, in regard to the undertaking of the members, the corporation is in no way liable, and has no interest which may be made the object of the suit. For the purposes of our consideration, we shall not be concerned with the method of Lloyds business, or how it is carried on. We are concerned directly only with its action as treasurer of each of the syndicates here referred to. It is only in that capacity that they are sued. If the allegations be true, then there was organized an unincorporated association for each syndicate, with Lloyds, a corporation, as its treasurer.

Our further inquiry must be — and as to this we may look to the affidavits — whether Lloyds does business in the state of New York, and whether it had a managing agent who might be served in the state of New York. There is sufficient in the allegations of the complaint which indicates that Lloyds, a corporation, holds and administers the funds belonging to each syndicate which are applicable to the payment of loss. We are not presently concerned with the manner in which the loss is paid.

It is clear that the individuals and corporations making up the associations are united in common purpose, which is the carrying on of insurance by the underwriting syndicates. They have no charter, but function practically as a corporation; each syndicate appointing its agent to carry on its common enterprise. As stated in the affidavit of the superintendent of insurance of the state of New York:

"That the corporation of Lloyds does not as such do an insurance business, but that Lloyds insurance policies are issued by underwriting members of Lloyds by subscription of their names individually or by underwriting agents acting for a syndicate, all acting in association upon their several liabilities to the extent specified in the policies by a proportion of the risk set opposite their several names."

The Supreme Court recently defined the term "association," as "a term `used throughout the United States to signify a body of persons united without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise.'" See Hecht v. Malley, 265 U. S. 144, 44 S. Ct. 462, 68 L. Ed. 949. There a Massachusetts trust created under the laws of Massachusetts was held to be an association within the meaning of the anti-trust law. A miners' labor union was also considered an unincorporated association. United Mine Workers v. Coronado Coal Co., 259 U. S. 344, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762. And members of an unincorporated association of underwriters are liable as joint insurers under a certificate of insurance issued by their agents under and subject to the conditions of a certain open policy, the contents of which were unknown to the insurer, but what the certificate stated was issued by the association, although the policy was in fact made by the members of the association in their separate individual capacity, and under its terms each underwriter was held to assume his proportionate part of the aggregate amount payable to the insured in the event of loss. Imperial Shale Brick Co. v. Jewett, 169 N. Y. 143, 62 N. E. 167.

It is clear from the record that all premiums received at Lloyds are paid into the trust fund and are administered by a committee of Lloyds against the loss accruing on outstanding risks; and it is alleged that Lloyds acted as treasurer. Thus the corporation received the funds and pays out the money upon claims arising on the policies issued as treasurer of the syndicates. A foreign corporation has been held to be "any person" entitled to equal protection of the law under the Fourteenth Amendment, and by analogy a foreign corporation may be a person within the definition of a person who may be a party to an association within the definition of Hecht v. Malley, supra, and under section 13 of the General Associations Law referred to. Smyth v. Ames, 169 U. S. 466, 18 S. Ct. 418, 42 L. Ed. 819; Southern Ry. Co. v. Greene, 216 U. S. 400, 30 S. Ct. 287, 45 L. Ed. 536, 17 Ann. Cas. 1247. If an individual had been acting as treasurer of these syndicates, and had been found within the jurisdiction of the court, undoubtedly service upon that individual would be sufficient.

As has often been said, a corporation is in law an entity, which can act only through agents, and the managing agent appointed in this instance was served with the summons. Under section 229 of the New York Civil Practice Act, personal service of the summons and complaint on a foreign corporation must be made by delivering a copy...