Bruns v. Milk Wagon Drivers' Union, Local 603

• Decision Date: 06 June 1922
• Docket Number: No. 17193.,17193.
• Parties: BRUNS at al. v. MILK WAGON DRIVERS' UNION, LOCAL 603.
• Court: Missouri Court of Appeals

242 S.W. 419

BRUNS at al. v. MILK WAGON DRIVERS' UNION, LOCAL 603.

No. 17193.

St. Louis Court of Appeals. Missouri.

June 6, 1922.

Rehearing Denied June 20, 1922.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Helen Bruns and another against the Milk Wagon Drivers' Union, Local 603. Judgment for plaintiffs, and defendant appeals. Affirmed.

C. J. Anderson, of St. Louis, for appellant.

Hal It. Coleman, of St. Louis, for respondents.

NIPPER, C.

This suit originated before a justice of the peace, and was filed by John Bruns, who alleged that he was the father of Henry Bruns, deceased, and that Henry Bruns was, during his lifetime, a member of Milk Wagon Drivers' Union, Local 603; that all his dues were paid, and that he was in good standing on the date of his death, which occurred on October 31, 1918; that said defendant was a labor organization; that upon the death of deceased there was due plaintiff, as next of kin, the sum of $500, as provided in the constitution and bylaws of said defendant order; that demand had been made and payment refused. Upon appeal to the circuit court, the cause "was called for trial on June 17, 1919. At the close of all the evidence, plaintiff was granted leave to amend his petition by making his wife, Helen Bruns, party plaintiff. Defendant then requested the court to order a mistrial and continue the case. This request was sustained by the trial court, the jury discharged, and the cause continued.

Plaintiff, John Bruns, died on the 14th of December, 1919. The next trial of the case was had in February, 1920, at which time the death of plaintiff was suggested, and leave granted to proceed in the name of Helen Bruns, his wife. At the close of plaintiff's case, at the second trial, after defendant had requested an instruction in the nature of a demurrer, plaintiff was permitted by the court to amend her petition by adding a new party plaintiff, namely, her son, Joseph Bruns, a minor, by Helen Bruns, his next friend. Defendant again requested the court to order a mistrial, which the court refused to do. The case then went to the jury. Plaintiff recovered, and defendant appeals.

The deceased died on October 31, 1918. The original plaintiff died on December 14, 1919. After the death of the original plaintiff, Helen Bruns was granted a refusal of letters of administration on the estate of her husband by the probate court of the city of St. Louis. Deceased was 23 years old, and unmarried. When he died, he left surviving him his father, mother, and brother. He had paid all his dues to the organization, and was not delinquent at the time of his death.

The Milk Wagon Drivers' Union, Local 603, was organized June 4, 1913. It is provided in the by-laws that the object and purpose of this union is to organize all drivers engaged in the distribution of milk and dairy products, etc. Section 1, article 1, of the by-laws, provides that it was organized for the guidance of local conditions for men that deliver milk and dairy products in the city and county of St. Louis. The by-laws also provide that the dues shall be $1.25 per month, and must be paid in advance on or before the fourth Thursday, and, if not paid in accordance, no sick, accident, or death benefit will be allowed. It is further provided that no member of the union shall have his name dropped from the books for nonpayment of dues, but that such member shall be debarred from all benefits provided by the union. Section 6 of article 7 provides that all members must be in continuous good standing three months prior to sickness, accident, or death, before benefits will be paid. Section 7 of the same article provides that for the first three months after becoming a member no benefits will be paid; thereafter the benefits will be, in case of sickness or accident, $10 per week, and in case of death, from the first three months to the end of six months, $100, after six months to the end of twelve months, $300, and thereafter $500.

The deceased had been a member of this union a sufficient length of time to entitle plaintiffs to $500, if they were entitled to anything. The dues of the deceased were paid to the union for the month of October, 1918, on October 1, 1918; dues for the month of September, 1918, were paid on October 1, 1918; dues for the month of August, 1918, were paid on August 3, 1918; dues for the month of July, 1918, were paid on August 3, 1918; and dues for the month of June, 1918, were paid on August 3, 1918. Deceased always paid three, four, or five weeks behind time. This money was paid to Mr. Norman, secretary-treasurer of the defendant union, who always accepted such payments. We copy the following from the testimony of the secretary-treasurer:

"Q. So that, so far as the book shows, he was paid up at the, time of his death? A. The books shows he was paid up, but he is not entitled to benefits according to the laws of our organization.

"Q. I understand the point that you are making, he was not entitled to benefits because he didn't pay his dues 90 days before? A. He is not entitled to this because he did not comply with the laws of the organization.

"Q. He should have kept his dues up and should not have been lapsed SO days before his death? A. Correct.

"Q. That is your contention? A. Yes, sir.

"Q. Nevertheless, less than 30 days before his death you accepted his money for September and October, didn't you? A. We did.

"Q. And you had been accepting his money when he paid behind and ahead of time all through these years? A. He had never paid ahead of time. * * *

"Q. But you never at time refused to take his money behind time? A. No; we don't expel members because they fall behind, become unfortunate, and don't pay their dues in time.

"Q. And that had been your custom all during these years, to take his money? A. Not with any individual member, but with all of our members.

"Q. That is the custom of all the members, to take their money behind...