Int'l Bhd. Of Boilermakers v. Wood

• Citation: 175 S.E. 45
• Parties: INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, WELDERS AND HELPERS OF AMERICA. v. WOOD.
• Decision Date: 14 June 1934
• Court: Supreme Court of Virginia

175 S.E. 45

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, WELDERS AND HELPERS OF AMERICA.

v.WOOD.

Supreme Court of Appeals of Virginia.

June 14, 1934.

Error and Supersedeas to Circuit Court of City of Portsmouth.

Action, instituted by notice of motion for judgment, by B. L. Wood against the International Brotherhood of Boiler Makers, Iron Shipbuilders, Welders and Helpers of America and another. Judgment for plaintiff against named defendant, and the latter brings error and supersedeas.

Reversed and remanded.

Argued before CAMPBELL, C. J,., and HOLT, EPES, HUDGINS, GREGORY, and CHINN, JJ.

Robert F. McMurran, of Portsmouth, for plaintiff in error.

John C. Davis and S. M. Brandt, both of Norfolk, for defendant in error.

EPES, Justice.

This is an action instituted by a notice of motion for judgment. It was brought by B. L. Wood against the International Brotherhood of Boiler Makers, Iron Shipbuilders, Welders and Helpers of America (an unincorporated association or order), which we shall hereafter refer to as the International Brotherhood, and the American National Insurance Company (a foreign corporation) as joint defendants.

The International Brotherhood filed a plea in abatement to which the plaintiff demurred, and the court sustained the demurrer.

No formal pleas in bar appear to have been filed by either defendant, but they filed their grounds of defense which were sufficient to put in issue all the defenses which were interposed by the instructions, and to raise all the questions which are raised in the assignments of error here made.

The court instructed the jury that there could be no recovery against the American National Insurance Company, and there was no verdict or judgment against it. There is no assignment of error or cross-error on this score, and we are here concerned with this action only as an action against the International Brotherhood.

The jury returned a verdict against the International Brotherhood for $500. On the motion of the plaintiff, the court set the verdict aside and entered judgment for the plaintiff against the International Brotherhood for $1,000. To this judgment the International Brotherhood assigns error.

The notice of motion for judgment is drawn in conformity with section 6094, Code Va. 1919, relating to declarations on an insurance policy. It alleges that "on the 30th day of September, 1931, the undersigned (i. e., the plaintiff) contracted an incurable disease known as 'Hodgkin's disease, ' and as a direct and proximate result thereof he has suffered a total and permanent disability and by reason thereof * * * cannot perform his daily occupation, " that he is a member of the International Brotherhood, and that by virtue of the contract of insurance between the International Brotherhood and the plaintiff, which is contained in the constitution and by-laws, he is entitled to recover of it for such total and permanent disability $1,000. A full and complete copy of the constitution and bylaws is filed with and made a part of the notice of motion for judgment.

This copy shows on its face that it is a copy of the constitution and by-laws as revised and adopted by the convention of the International Brotherhood which met in September, 1930. But the case has been proceeded with both here and in the court below upon the assumption that, in so far as it is pertinent to this case, the provisions thereof have remained the same from prior to the time that Wood claims to have been reinstated to membership in 1926; and we accept this as having been admitted.

The first assignment of error is that the court erred in sustaining plaintiff's demurrer to the International Brotherhood's plea in abatement. This assignment of error is not well made.

The original return of the city sergeant as to service of the notice of motion for judgment on the International Brotherhood read:

"Executed in the City of Portsmouth, Va., this 6th day of May, 1932, by delivering a copy of the within Notice of Motion to C. P. Houston in person, who is the President of the within-named defendant corporation, Local 178--International Brotherhood of Boiler-Makers, Iron Ship Bldgs. & Helpers of America, in which City an office of the said corporation is located."

The International Brotherhood appeared specially and moved the court to quash this return. The court sustained the motion, but permitted the city sergeant to amend his return to read:

"Executed in the City of Portsmouth, Virginia, this 6th day of May, 1932, by delivering a copy of the within Notice of Motion on C. P. Houston in person, who is the President of Local #178 and the Agent of the within-named defendant unincorporated association."

No motion was made to quash the amended return; but the International Brotherhood filed a plea in abatement, which reads:

"And the said International Brotherhood of Boiler-makers, Iron Ship-builders, Welders and Helpers of America, comes and says that it is an unincorporated association and that this court ought not to have or take any further cognizance of this cause of action for the reason that it has not been served with any process in this case and sets forth as follows:

"That, by section 6058 of the Code of Virginia, process against unincorporated associations must be served upon an officer or trustee of said association and in this case the return of the officer shows that it was served upon an officer of a subordinate lodge of this association and not upon any officer or trustee of the International lodge. This affiant further sets forth that under the Constitution and By-laws of this organization there are subordinate lodges, in addition to the International organization and that under the said Constitution and By-laws, the International organization has full control over, insures and takes care of all death and disability benefits and that the subordinate lodgeshave nothing whatever to do with the same, therefore, suit must be brought against the International organization and not against the subordinate lodge and process must be served upon an officer or trustee of the International organization. This affiant further sets forth that the principal place of business of the said International organization is Kansas City, Kansas, and that its officers and trustees are J. A. Franklin, President, J. N. Davis, Assistant President, and Charles F. Scott, Secretary and Treasurer, and the residence of the said officers is Kansas City, Kansas. Wherefore, this affiant prays whether this court ought to take or have any further cognizance of this action against the International Brotherhood of Boiler-makers, Iron Ship-builders, Welders and Helpers of America."

The plaintiff demurred to this plea, saying it "is insufficient in law, in that it fails to give the plaintiff a better writ as it fails to show that suit might be instituted against said defendant in any other court in this State;" and the court sustained the demurrer.

[I] An unincorporated association or order can be sued as an entity in Virginia only by virtue of section 6058, Code Va. 1919;¹ and, when it is sought to sue it as an entity, process or notice can be served upon it only by serving a copy thereof on a person upon whom service is authorized by that section; that is, upon "any officer or trustee of such association or order." Service upon a mere agent of the association or order or upon an officer of a subordinate lodge of the order is not sufficient. See Grand Lodge B. L. F. v. Cramer, 53 Ill. App. 578.

The designation by the constitution, articles of association, or by-laws of the order of certain persons as its officers is not conclusive that there are no other officers. If there are other persons whose duties, powers, and relationships to the order are those of officers, as distinguished from those of mere agents, they are officers of it within the meaning of section 6058, though they are not designated as officers in its constitution or by laws. But no presumption or inference that a person is an officer of a grand lodge of such an order arises from the mere fact that he is an officer of a subordinate lodge thereof, and as such is for some purposes an agent of the grand lodge.

Had the International Brotherhood made no appearance, the amended return would have been insufficient to support a judgment against it. Had it moved to quash the return on the ground that it failed to show that the notice had been served upon an officer or trustee of the International Brotherhood, the court should have sustained the motion.² Then, as this is a proceeding by notice of motion for judgment, the whole proceeding must have been dismissed of necessity, unless the return could be and was amended so as to state that the person upon whom the notice was served was an officer or trustee of the International Brotherhood, and not merely of a subordinate lodge. (See section 6046 [as amended by Acts 1928, c. 121, p. 531] which provides that a notice of motion for judgment must be returned to the clerk's office within five days after it is served.) It is the fact of service which gives the court jurisdiction. The return is merely the evidence of the jurisdictional fact. If it fails to show the facts as to the service, it may be amended to show them, but, if there has been no service in fact, jurisdiction fails.

However, the International Brotherhood pursued neither of these courses. It resorted to a plea in abatement, alleging not merely that the return failed to show that it had been served with process, but that "It had not been served with any process in the case." Having chosen to attack by plea in abatement not merely the evidence of the service but the fact of service, the defendant must stand on the issue made by his plea and bo governed by the rules applicable to such pleas.

The plea is defective, not because it does not "show that suit might be instituted against said defendant in any other court in this State, " but because it fails to show that no...