Clark v. Grand Lodge of Brotherhood of Railroad Trainmen

• Decision Date: 17 November 1931
• Citation: 43 S.W.2d 404,328 Mo. 1084
• Parties: C. B. Clark and W. H. Steed, Appellants, v. Grand Lodge of the Brotherhood of Railroad Trainmen
• Court: Missouri Supreme Court

43 S.W.2d 404

328 Mo. 1084

C. B. Clark and W. H. Steed, Appellants, v. Grand Lodge of the Brotherhood of Railroad Trainmen

Supreme Court of Missouri

November 17, 1931

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Reversed and remanded.

R T. Brownrigg and Mason, Goodman & Flynn for appellants.

(1) Inasmuch as the petition alleges that the defendant is a brotherhood or fraternal organization and is engaged in this State in the business of issuing beneficial certificates or policies of insurance on the lives of its members, and that it possesses powers and privileges not possessed by partnerships or individuals, it appears from the petition that the defendant is a suable entity without the aid of Sec 1186, R. S. 1919, which has been held unconstitutional in so far as it undertakes to create voluntary associations as suable entities. Syz v. Milk Wagon Drivers Union (Mo. App.), 24 S.W.2d 1082; Mayes v. United Garment Workers, 320 Mo. 10; State ex rel. Home Savings Institution v. Lee, 288 Mo. 702; Williams v. U.S. Express Co., 195 Mo.App. 362; Wiehtuechter v. Miller, 276 Mo. 322; United Mine Workers v. Coronado Coal Co., 259 U.S. 244, 42 S.Ct. 570; Bruns v. Milk Wagon Drivers Union, 242 S.W. 419; Taff Vale Ry. Co. v. Society of Railway Servants, A. C. 1901, 426 (English case decided by the House of Lords); Brotherhood of Railroad Trainmen v. Adams, 5 S.W.2d 96; Reid v. Brotherhood of Railroad Trainmen, 232 S.W. 185; Murphy v. Brotherhood of Railroad Trainmen, 199 S.W. 730; Shadley v. Grand Lodge of the Brotherhood of Railroad Trainmen, 254 S.W. 363; State v. Stone, 118 Mo. 388; Secs. 6398, 6414, R. S. 1919; State ex rel. Lee v. Calhoun, No. 27004 of Supreme Court, in which petition for prohibition was denied without opinion. (2) By appearing in the name in which it was sued and filing a general demurrer the defendant admits its capacity to be sued. Highway Commission v. Cox, 1 S.W.2d 787. (3) The assignee of a chose in action may properly bring suit in his own name even if under a supplemental agreement another may retain the beneficial interest in the chose in action. Guerney v. Moore, 131 Mo. 668; Young v. Hudson, 99 Mo. 106; Dean v. Chandler, 44 Mo.App. 343; Sanguinett v. Webster, 153 Mo. 371. (4) There is nothing in the petition to indicate that the agreement between plaintiffs and their various assignors of the contracts sued on is in any way tainted with champerty. However, if such agreements were champertous, the defense of champerty is available only in a suit between the plaintiffs and their assignors on the champertous agreements themselves. Such defense is not available to the defendant in this case by way of demurrer, answer or otherwise. Million v. Ohnsorg, 10 Mo.App. 436; Bick v. Overfelt, 88 Mo.App. 141; Powell v. Bowen, 214 S.W. 147. (5) Where the insurer repudiates the insurance contract by wrongfully refusing to accept the premium, the insured has a right to recover back the premiums paid as on a rescission, and the facts justifying such rescission are properly pleaded in this case. Shadley v. Grand Lodge of Brotherhood of Railroad Trainmen, 254 S.W. 363; McKee v. Phoenix Ins. Co., 28 Mo. 383; Tutt v. Life Ins. Co., 19 Mo.App. 677; Suess v. Life Ins. Co., 64 Mo.App. 1.

W. S. Campbell and Rassieur, Long & Yawitz for respondent.

(1) The Grand Lodge of the Brotherhood of Railroad Trainmen is a voluntary association and is not a suable entity in the name adopted by the members thereof unless there is some provision of the statutes making the members suable in the name adopted by them. Newton County Farmers & Fruit Growers Exchange v. Ry. Co., 31 S.W.2d 803; Lilly v. Tobein, 103 Mo. 486; State ex rel. Great Am. Home Savings Institution v. Lee, 233 S.W. 27; State ex rel. v. Stead, 64 Mo.App. 28; Hajek v. Bohemian, etc., Soc., 66 Mo.App. 568; 5 C. J. 1365, 1369, and notes. (2) The Brotherhood of Railroad Trainmen, even though it may issue fraternal beneficiary certificates, is not a fraternal beneficiary association under the statutes of Missouri relating to fraternal beneficiary associations, as disclosed by the allegations contained in the petition, (a) because there are no facts alleged in the petition showing that respondent falls within the term "Fraternal Beneficiary Associations," as defined in said statute; (b) because said statute does not apply to societies "which limit their membership to any one hazardous occupation;" (c) because the courts of this State hold that respondent does not fall within the terms of said statute. Secs. 5990, 5991, R. S. 1929; Sec. 6021, R. S. 1929; O'Neal v. Grand Lodge Brotherhood of Railroad Trainmen, 261 S.W. 128; Murphy v. Brotherhood of Railroad Trainmen, 199 S.W. 730. (3) Secs. 6398 and 6414, R. S. 1919 (now Secs. 5990 and 6006, R. S. 1929), do not make a foreign voluntary unincorporated association a suable entity in the name selected by its members. State ex rel. Am. Central Life Ins. Co. v. Landwehr, 300 S.W. 294. (4) Respondent is not a suable entity in the name selected by its members under Sec. 728, R. S. 1929, because, in so far as that section attempts to make voluntary unincorporated associations suable entities, it is unconstitutional. Mayes v. United Garment Workers, 6 S.W.2d 333. (5) The respondent is not a "corporation" within the term "corporation," as defined in Sec. 4526, R. S. 1929, because: (a) It is not a joint stock company or association, and has none of the attributes of a joint stock company or association. Williams v. United States Express Co., 195 Mo.App. 362. (b) It does not enjoy any of the attributes, powers or privileges of corporations. Sec. 4555, R. S. 1929. (c) It does not enjoy any rights or privileges not possessed by individuals or partnerships within the meaning of said section. Newton County Farmers' & Fruit Growers' Exchange v. Ry. Co., 31 S.W. 803; State ex rel. Great Am. Home Savings Inst. v. Lee, 233 S.W. 20; Sec. 10115, R. S. 1929. (6) The allegations contained in plaintiffs' petition as to claimed powers and privileges alleged to be enjoyed by respondent which are not possessed by individuals or partnerships are not statements of facts, but are mere conclusions of law. Newton County Farmers' and Fruit Growers' Exchange v. Ry. Co., 31 S.W.2d 803; State ex rel. Great American Home Sav. Inst. v. Lee, 233 S.W. 20; Mayes v. United Garment Workers, 6 S.W.2d 333. (7) For the purpose of ruling on a demurrer pleaded conclusions of law are not admitted by the demurrer and raise no issue. Newton County Farmers' and Fruit Growers' Exchange v. Kansas City Southern Ry. Co., 31 S.W.2d 803; State ex rel. Great American Home Sav. Inst. v. Lee, 233 S.W. 20; Mayes v. United Garment Workers, 6 S.W.2d 333. (8) If the respondent is to be considered a corporation for the purposes of the instant case the plaintiff is required to bring suit either in the county where the causes of action accrued or in any county where respondent shall have or usually keep an office or agent for the transaction of its usual and customary business, and as there are no allegations in the petition that any of the plaintiffs' alleged causes of action accrued in the city of St. Louis or that the respondent has or usually keeps an office or agent for the transaction of its usual and customary business in the City of St. Louis, the Circuit Court of the City of St. Louis has no jurisdiction over the defendant. Sec. 723, R. S. 1929; State ex rel. Standard Fire Ins. Co. v. Gantt, 203 S.W. 964; State ex rel. St. Joseph Lead Co. v. Jones, 192 S.W. 980. (9) By filing a demurrer in which the jurisdiction of the Circuit Court of the City of St. Louis over the respondent was questioned, the respondent did not enter its appearance generally or waive its right to object to the jurisdiction of said circuit court, because: (a) Under the statute relating to demurrers it is expressly provided that want of jurisdiction over the person shall be raised by demurrer if it appears on the face of the petition. Sec. 770, R. S. 1929. (b) The only pleadings which may be filed by a defendant are a demurrer or an answer. Hallen v. Smith, 305 Mo. 167, 264 S.W. 665; Mayes v. United Garment Workers, 6 S.W.2d 333. (c) The respondent is not a legal entity, has no existence recognized by the law enabling it to waive jurisdiction, and the want of jurisdiction of the courts may be raised at any stage of the proceedings. Metropolitan Street Railway Co. v. Adams Express Co., 145 Mo.App. 371; 47 C. J. 193, sec. 368.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

The plaintiffs brought this suit in the Circuit Court of the City of St. Louis. The case comes to this court on plaintiffs' appeal from the judgment of that court sustaining defendant's demurrer to plaintiffs' petition and adjudging that plaintiffs take nothing by their suit. The demurrer is in the usual and standard form, reciting that defendant "comes" into court and demurs to plaintiffs' petition and each count thereof for the reasons therein stated. The questions raised by the demurrer are the only ones to be considered by this court.

We make this preliminary statement for the reason that the record shows that at the return term of court the defendant appeared specially and for the purpose of the motion only and filed its motion to quash the sheriff's return showing service on the defendant. That motion was overruled and defendant excepted to the court's action and filed its term and final (joint) bill of exceptions, but the defendant is not an appellant here and complains of nothing. At the next term of the trial court the defendant filed its demurrer and in that does not attempt to limit its appearance specially or for the purpose of the demurrer only, if indeed that could be done. By its demurrer ...