Hurley v. Brotherhood of R.R. Trainmen

• Decision Date: 29 November 1946
• Docket Number: 32078.
• Citation: 25 N.W.2d 29,147 Neb. 781
• Parties: HURLEY v. BROTHERHOOD OF RAILROAD TRAINMEN.
• Court: Nebraska Supreme Court

25 N.W.2d 29

147 Neb. 781

HURLEY v. BROTHERHOOD OF RAILROAD TRAINMEN.

No. 32078.

Supreme Court of Nebraska

November 29, 1946

Syllabus by the Court.

1. In the absence of statute authorizing such procedure, an unincorporated society or association cannot be sued by its name in this state as an entity.

2. A foreign unincorporated association, organized to promote the social, moral, and intellectual interests of its members cannot be properly served with process by service of summons upon the Director of Insurance pursuant to section 44-137 R.S. 1943, when the basis of the action is unrelated to any matter connected with insurance.

3. A foreign unincorporated association could not be properly served with process by leaving a summons with the Auditor of Public Accounts under the provisions of section 24-1201 Comp.St. 1929, for the reason that such section afforded a method for serving process upon corporations only.

4. Service of process may not be properly had upon an unincorporated association under sections 25-313 and 25-314, R.S. 1943, where it is not shown that such association was formed to carry on some trade or business, or to hold some species of property in this state.

5. A labor union is not a corporation in this state by virtue of section 21-608, R.S. 1943, and the method provided for obtaining process on corporations is not applicable to such union.

6. It will be presumed that the Legislature, in adopting an amendment, intended to make some change in the existing law, and the courts will endeavor to give some effect to any change made.

7. In considering an amendatory or substituted statute it is proper to consider the provisions of the law which were repealed in connection with the law which takes its place, in order to ascertain the legislative intent.

8. By eliminating the word 'union' from the list of organizations, societies, and orders set forth in the section of the statutes, prior to its amendment in 1935, that now appears as section 21-608, R.S. 1943, the Legislature manifested a plain intent to exclude labor unions from the operation of the statute.

Charles A. Fisher and Greydon L. Nichols, both of Chadron, for appellant.

E. D. Crites, of Chadron, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CARTER Justice.

Plaintiff commenced this suit against the Brotherhood of Railroad Trainmen to recover damages alleged to have resulted from a violation of his rights as a member of the defendant union. From an order directing a verdict for the defendant the plaintiff appeals.

The appeal presents questions concerning the liability of the defendant to suit in Nebraska, the sufficiency of the process, and the right of plaintiff to sue defendant for violation of rights existing under defendant's collective bargaining agreement with the Chicago and North Western Railway Company while the plaintiff was a member of the defendant union.

The defendant is a labor union, an unincorporated voluntary association, having for its purpose the promotion of the best interests of its membership composed of railroad trainmen, with its general offices at Cleveland, Ohio. It appears also that defendant operated an insurance department as a collateral activity until February 1, 1936. On that date the insurance department was incorporated as the Brotherhood of Railroad Trainmen Insurance Department under the laws of the state of Ohio. It is not disputed that the present action is unrelated to any question of 2nsurance.

The basis of the action for damages grows out of the following state of facts: The plaintiff was a train conductor, working as a brakeman for the Chicago and North Western Railway Company on December 19, 1937. At 12:45 a. m. of said day, and several hours after he had been released from duty as a brakeman, plaintiff was found removing three cases of cigarettes from the way car of the train on which he had been working. Plaintiff was notified by the railroad company to appear for investigation in accordance with the provisions of the collective bargaining agreement existing between the defendant union and the Chicago and North Western Railway Company. The plaintiff was found guilty of the theft of the cigarettes and dismissed from the service. An appeal was taken to the highest operating officer of the railroad authorized to finally pass upon the case and the dismissal upheld. Plaintiff then directed the general chairman of the grievance committee of the defendant union to appeal the case to the National Railroad Adjustment Board. The purported appeal to that board was dismissed for the reason that 'The provision concerning appeal within 90 days, contained in the fifth paragraph of Rule 83 of the Agreement, was not complied with by the complainant and was not waived by the carrier.'

It is the contention of plaintiff that he has been damaged to the extent of $50,000 because of the failure of defendant's general chairman to properly perfect the appeal. Plaintiff alleges that the appeal if perfected would have been sustained by the National Railroad Adjustment Board, which action would have entitled him to pay for all time lost, amounting to more than two years. The primary reason advanced in support of the assertion that the National Railroad Adjustment Board would have sustained the appeal, if it had been properly taken under Rule 83, is the fact that plaintiff was acquitted in the United States District Court for Nebraska, Chadron Division, of the offense of stealing goods constituting the whole or a part of an interstate shipment. Many reasons exist for stating that the acquittal of the special crime charged did not establish the innocence of the plaintiff in a suit for damages; in fact, we do not think the evidence was even admissible for that purpose. Hampton v. Westover, 137 Neb. 695, 291 N.W. 93; Lillie v. Modern Woodmen of America, 89 Neb. 1, 130 N.W. 1004; Ex Parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552.

The record discloses that upon the commencement of the action a summons was issued directing the sheriff of Dawes County to notify the 'Brotherhood of Railroad Trainmen' that it had been sued. The sheriff's return shows that the summons was served by leaving a copy at its usual place of doing business in Dawes County, with Harry L. Williams, a secretary-treasurer of said defendant association. The return further recites that the summons was further served by delivering a copy thereof to Clifford Walker, the president of the lodge of the defendant located in Dawes County, and by delivering a copy to Harry L. Williams, the secretary-treasurer of said lodge of the defendant in Dawes County. It also appears that a summons was issued to Lancaster County and served upon the defendant by delivery to the Director of the Department of Insurance and further upon said defendant by delivery to the Auditor of Public Accounts. The defendant appeared specially and objected to the jurisdiction of the court over the person of the defendant and properly preserved that objection throughout the course of the trial

We do not think the service of summons upon the Director of Insurance, as provided by section 44-137, R.S. 1943, gave the court jurisdiction of the person of the defendant. The insurance business conducted for the benefit of railroad trainmen was carried on by the Brotherhood of Railroad Trainmen Insurance Department, a corporation, an entirely different entity from the Brotherhood of Railroad Trainmen, an unincorporated association. In addition thereto the basis of the action was entirely unrelated to any matter connected with insurance.

In Simpson & Smith v. Grand International Brotherhood of Locomotive Engineers, 83 W.Va. 355, 98 S.E. 580, 583, a case very similar to the one at bar, it was said: 'The Grand International Brotherhood of Locomotive Engineers and the Locomotive Engineers' Mutual Life and Accident Association, the two corporations to which reference has been made, are not identical. The Grand International Brotherhood covers vastly more ground than the insurance association. Its purpose is the promotion of the general interests of railway locomotive engineers. The insurance association merely provides life and accident indemnities for such members of the Brotherhood as become certificate or policy holders therein, and the building association is a corporation owning and managing a Brotherhood building in the city of Cleveland, Ohio. Though all members of the Brotherhood having the necessary physical qualifications are expected or required to become members of the insurance association, and membership in the Brotherhood is a condition both precedent and subsequent to right of membership in the insurance association, all members of the Brotherhood are not members of that association. The estimated number of those who are not members of the latter, because they are physically disqualified from such membership, is estimated at about four thousand. The insurance association limits the scope of its insurance business, as any other insurance corporation might, to members of the Brotherhood in good standing, and makes its collections of assessments for payment of indemnities through the officers of the local division of the Brotherhood. Nevertheless, the insurance association is a distinct entity from the Brotherhood. It is a corporation capable of contracting, suing, and being sued and owning and holding property as fully and completely as an individual may own and hold it, and the association known as the Brotherhood has no such capacity and is not in any legal sense the owner of the assets of the insurance association, nor liable on its contracts of insurance. That an unincorporated society and an incorporated insurance...