Clark v. Brotherhood of Locomotive Firemen

• Decision Date: 11 May 1903
• Citation: 74 S.W. 412,99 Mo.App. 687
• Parties: ISAAC CLARK, Respondent, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN et al., Appellants
• Court: Kansas Court of Appeals

74 S.W. 412

99 Mo.App. 687

ISAAC CLARK, Respondent, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN et al., Appellants

Court of Appeals of Missouri, Kansas City

May 11, 1903

Appeal from Linn Circuit Court.--Hon. John P. Butler, Judge.

AFFIRMED.

Judgment affirmed.

E. R Stephens and John H. Murphy for appellants.

(1) "Personal service of process upon a non-resident defendant in a State other than the State issuing the process, is insufficient to subject his person to the jurisdiction of the court, because a State can not effectively send its process beyond its own limits, and a judgment by default against a non-resident so served is void in personam, both within and without the State of its rendition, and no action can be maintained upon it." Reno on Non-residents, sec. 198; Harkness v. Hyde, 98 U.S. 476; Denny v. Ashley, 12 Colo. 165; Weil v. Lowenthal, 10 Ia. 575; Hakes v. Shupe, 27 Ia. 465; Ewer v. Coffin, 1 Cush. 23; Rand v Hanson, 154 Mass. 87; McEwan v. Zimmer, 38 Mich. 765; Bischoff v. Wethered, 9 Wall. 812. (2) The petition does not state facts sufficient to constitute a cause of action; it will be clearly seen at once, we think that under the most liberal view of interpretation of the pleadings, the plaintiff was not entitled to a judgment against any of the defendants, for the only paragraph upon which he could possibly predicate any claim was but a mere conclusion of law, the allegation being, "That heretofore, to-wit, on the--day of ---, 1900, the said plaintiff became and now is and while he may live will continue to be totally disabled." "To constitute good pleadings the facts alone must be alleged. It is a general rule which applies to all pleadings, whether at common law, in equity or under the codes, that legal conclusions should not be pleaded, and that a bill, answer, complaint or declaration or other pleading is bad if it contains nothing more than the bare averments of a legal conclusion." 12 Ency. Pl. and Pr. pp. 1020, 1022; Thurley v. Edwards, 18 Mo.App. 689; Pier v. Heinrichoffen, 52 Mo. 336; Wiggins v. Graham, 51 Mo. 17; Curran v. Downs, 3 Mo.App. 468; Miles v. Jones, 28 Mo. 87; Gamage v. Bushell, 1 Mo.App. 418; Kerr v. Simmons, 82 Mo. 269; Commissioners' Court v. Medical Society, 29 So. Rep. 586; Sidway v. Live Stock Co., 163 Mo. 342; 63 S.W. 705; Hand v. St. Louis, 158 Mo. 204; 59 S.W. 92. (3) "Neither the allegation of a conclusion of law nor its denial in a pleading raises an issue; therefore, the mere averment of a legal conclusion does not warrant the introduction of evidence." 12 Encyc. of Pl. and Pr., pp. 1024 and 1025, citing a large number of cases including Koon v. Tramel, 71 Iowa 133; Ins. Fund v. Boesse, 92 Ky. 296; Templeton v. Sharp, 9 S.W. 697; Griggs v. St. Paul, 9 Minn. 246; Price v. Dayle, 34 Minn. 401; Bank v. Myers, 44 Neb. 309; Hatch v. Peet, 23 Barb. (N. Y.) 582; Davis v. Hoppock, 6 Duer (N. Y.) 256; Seeley v. Ingell, 17 Barb (N. Y.) 530; Thomas v. Desmond, 12 How. Pr. 321; Clevenger v. Ins. Co., 71 Mo.App. 73; Sommers v. Ins. Co., 53 Mo.App. 521; Nester v. Casualty Co., 69 Mo.App. 186; Schiffnon v. Schiffnon, 154 Mo. 204. (4) It has been held that the assured is the party to whom notice of loss must be given and proof furnished. Stimpson v. Ins. Co., 47 Me. 379; Spalding v. Ins. Co., 53 Vt. 156; Ins. Co. v. Mackens, 38 N. J. L. 564; Stanton v. Ins. Co., 21 Low. Can. Jur. 211. "If no proof is furnished the liability does not attach." Davis v. Davis, 49 Me. 282; Jackson v. Ins. Co., 36 Ga. 429; Leadbetter v. Ins. Co., 13 Me. 265. (5) It will be remembered that no evidence was introduced showing the alleged contract to be that of any of the defendants. Kuhl v. Meyers, 35 Mo.App. 206; Miles v. Davis, 19 Mo. 414; Abbott's Trial Evidence (2 Ed.), p. 482; Baker v. Berry, 37 Mo. 307; Kerr v. Ins. Co., 40 Mo. 25; Hadwin v. Ins. Co., 13 Mo. 437; Curry v. Lackey, 35 Mo. 392; State v. Samuels, 28 Mo.App. 652; Bowling v. McFarland, 38 Mo. 465; Pomeroy v. Fullerton, 113 Mo. 440; See Vol. 6 Pl. and Pr. 229.

T. M. Bresnehen and Harry K. West for respondent.

(1) The service of the summons on the non-resident defendants, in the State of Illinois, was in strict conformity with the provisions of section 582, Revised Statutes 1899. Such service authorized the rendition of a judgment having the same effect and force, within the limits of this State, as judgments rendered against defendants personally served with summons in this State. That service, in accordance with the statute, authorizes the rendition of a judgment having the force and effect of a judgment in personam, in this State, has been directly decided by this court. R. S. 1899, sec. 582; Murdock v. Hillyer, 45 Mo.App. 287. (2) The appearance by the non-resident defendants after judgment, the filing of a motion for a new trial setting up grounds other than the alleged defective service; the appearance by them for the purpose of taking time to file an appeal bond and a bill of exceptions, and the appearance by them for the purpose of filing a joint bill of exceptions with the other defendants, were general appearances and were sufficient to subject the non-resident defendants to the jurisdiction of the court even though no service had been had upon them. Boulware v. Railroad, 79 Mo. 494; Pry v. Railroad, 73 Mo. 123; Tower v. Moore, 52 Mo. 118; Fitterling v. Railroad, 79 Mo. 504. (3) Appellants' learned counsel take it for granted that this is the pleading of a legal conclusion, and not the pleading of a fact, and cite numerous authorities to the effect that facts must be pleaded and not mere conclusions of law. We concede that facts, as distinguished from legal conclusions, must be pleaded. Allegations similar to these have been held to be good in numerous cases in this State. Howe v. Ins. Co., 75 Mo.App. 63; Richardson v. Ins. Co., 57 Mo. 413; Murphy v. Ins. Co., 70 Mo.App. 78; Chaney v. Ins. Co., 62 Mo.App. 45; Bacon on Benefit Societies and Life Insurance, sec. 454; Colley v. Wilson, 86 Mo.App. 396; Harris v. Wilson, 86 Mo.App. 406.

OPINION

SMITH, P. J.

--The defendant, The Brotherhood of Locomotive Firemen, is an unincorporated mutual benefit association located in the State of Illinois, where its chief officers consisting of grand master, grand secretary and treasurer reside. It is composed of numerous subordinate lodges located in various States and among which is the defendant, the Marceline Lodge No. 486 of the Brotherhood of Locomotive Firemen in this State, of which plaintiff is a member. The object and purpose of the association, amongst others, is to insure its members against death and total disability, and to provide for such insurance by the collection of assessments, dues and charges. The controlling and governing body of the association is the grand lodge which exercises a superintending control over all its subordinate lodges, while the chief officers above named are, under the by-laws of the association, entrusted with the possession and control of its moneys and property.

The association through the proper officers of its grand lodge executed and delivered to the plaintiff a beneficiary certificate, whereby it bound itself to pay him fifteen hundred dollars in the event of his total disability. The plaintiff while engaged in the performance of the duties of his employment, received an injury which resulted in his total disability; and though he had paid all the dues and charges required of him, and in all respects fully complied with the by-laws, rules and regulations of the association, yet, it wholly refused and neglected to pay him the amount of said certificate, or in any way to take steps in that direction.

The plaintiff in his petition alleged the facts to be something like we have stated them to be, and then concluded with a prayer "for judgment against all of the defendants for the said sum of fifteen hundred dollars, and further prays that the court will declare and adjudge the said judgment to be a prior lien upon all assessments and charges assessed, charged and collected by the said Brotherhood of Locomotive Firemen, upon and against all its said local lodges in the State of Missouri, and against all the members of all its said local lodges in the State of Missouri, and that such lien be enforced, and that the said defendants, Brotherhood of Locomotive Firemen, F. P. Sargent and F. W. Arnold, be required and compelled to disclose to this court and to the plaintiff, the names, numbers and locations of all its said local lodges in the State of Missouri, with the names of the officers and members thereof, and that the defendants herein and the said local lodges and the officers thereof be adjudged and required to pay into this court all of the said assessments and charges due or collected from all the members of such local lodges, for the defendant Brotherhood of Locomotive Firemen, until the judgment in this case is paid off and satisfied, and for all other and proper relief."

The defendants, the Marceline Lodge No. 486, and the master and secretary thereof, appeared and filed their joint answer. The other defendants, the Brotherhood of Locomotive Firemen, the grand master and grand secretary and treasurer, declined to appear and answer, but did appear for the purpose alone of filing a motion to quash as to them the writ of summons and the return thereon, but which was by the court overruled. They made no further appearance until after the finding and decree, when they all unconditionally and unqualifiedly appeared and filed a joint motion for a rehearing.

There was a hearing of the issues made by the pleadings resulting in a decree for plaintiff in conformity to the prayer of the petition; a default being entered as to the defendants' not appearing. A joint appeal was presented here by defendants.

It...