J. A. Jones Const. Co. v. Local Union 755 of Intern. Broth. of Elec. Workers (A. F. of L.)

• Decision Date: 28 June 1957
• Docket Number: No. 348,348
• Citation: 98 S.E.2d 852,246 N.C. 481
• Parties: , 40 L.R.R.M. (BNA) 2406, 32 Lab.Cas. P 70,847 J.A. JONES CONSTRUCTION COMPANY, a corporation, v. LOCAL UNION 755 OF the INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (A.F. OF L.) and W.W. Caudle, Business Agent, Local Union 755 of International Brotherhood of Electrical Workers (A.F. of L.)
• Court: North Carolina Supreme Court

Page 852

98 S.E.2d 852

246 N.C. 481, 40 L.R.R.M. (BNA) 2406,

32 Lab.Cas. P 70,847

J.A. JONES CONSTRUCTION COMPANY, a corporation, v. LOCAL UNION 755 OF the INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (A.F. OF L.) and W.W. Caudle Business Agent, Local Union 755 of International Brotherhood of Electrical Workers (A.F. of L.)

No. 348.

supreme Court of North Carolina.

June 28, 1957.

Robert S. Cahoon, Greensboro, and Carl E. Gaddy, Jr., Raleigh, for defendants-appellants.

H. Haywood Robbins and William H. Abernathy, Charlotte, for plaintiff-appellee.

PARKER, Justice.

The defendant Local Union 755 I.B.E.W. (A.F. of L.) assigns as error the failure of the court to dismiss the action as to it, because as an unincorporated labor union it cannot be sued, and further because no lawful service of process has been had upon it, as set forth in its "motion to dismiss and special demurrer."

On 10 December 1956 Judge Sharp heard evidence upon the "motion to dismiss and special demurrer" of defendant Local Union 755 I.B.E.W. (A.F. of L.), and continued the hearing until 14 December 1956 at the same place. At the hearing evidence to this effect was introduced: Local Union 755 I.B.E.W. (A.F. of L.) is an unincorporated labor union located in, and with headquarters in, Forsyth County, North Carolina, and it has failed to appoint any process agent. Defendant W.W. Caudle is business agent for defendant Local Union 755, is in charge of its affairs, and collects and disburses money for it. From this evidence and from defendants' joint answer introduced in evidence when the hearing was resumed, it clearly appears that defendant Local Union 755 is an unincorporated labor union, which is doing business in North Carolina by performing acts for which it was formed. it is therefore, suable as a separate legal entity. G.S. §§ 1-69.1, 1-97(6); Stafford v. Wood, 234 N.C. 622, 68 S.E.2d 268.

G.S. § 1-69.1, which became effective on 1 July 1955, and was in force when this case was insituted, provides that an unincorporated labor union may hereafter sue or be sued under the name by which it is commonly known and called, or under which it is doing business, to the same extent as any other legal entity established by law and without naming any of the individual members composing it. The words "sue" and "be sued" used in this statute "normally include the natural and appropriate incidents of legal proceedings" (Reconstruction Finance Corp. v. J.G. Menihan Corp., 312 U.S. 81, 61 S.Ct. 485, 487, 85 L.Ed. 595), and "embrace all civil process incident to the commencement or continuance of legal proceedings." 83 C.J.S., p. 775.

Defendant Local Union 755 has failed to appoint any process agent. The Record shows that the Sheriff of Wake County on 30 November 1956 served a copy of the cummons, petition and temporary injunction of Judge Huskins on the Secretary of State of North Carolina, and on 19 December 1956 he served on the same official a copy of the complaint. By virtue of G.S. § 1-97(6) such service of process--Local Union 755 doing business in this State by performing acts for which it was formed, and having appointed no process agent--is legal and binding on defendant Local Union 755. There is no evidence that the Secretary of State of North Carolina did not forward to Local Union 755 a copy of the process served upon him. "There is a presumption that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law." In re Housing Authority, 233 N.C. 649, 65 S.E.2d 761, 766. If the Secretary of State did not forward a copy of the process served upon him to defendant Local Union 755, the burden was on Local Union 755 to show it, and it has not done so. Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E.2d 322.

The Record also shows that on 28 November 1956 the Sheriff of Forsyth County served on the defendant W.W. Caudle, business agent of the defendant Local Union 755, a copy of the summons and petition, and that on 14 December 1956 the Sheriff of Mecklenburg County served on the defendant Caudle a copy of the complaint and the temporary injunction of Judge Huskins. Certainly, W.W. Caudle's relationship to defendant Local Union 755 is such that it can reasonably be expected he would give notice of the action to Local Union 755. That Local Union 755 had full notice of the summons, petition, temporary restraining order and complaint cannot be doubted.

Judge Shartp did not find the facts in respect to the "motion to dismiss and special demurrer," but merely denied and overruled it. The defendant Local Union 755 did not ask Judge Sharp to find the facts, as it did to find the facts upon which the temporary restraining order was continued to the final hearing, which the Judge did, though after judgment the Local Union 755 excepted to Judge Sharp's failure to find the facts. There is no statute which required Judge Sharp to find the facts on this "motion to dismiss and special demurrer," and in the absence of a request that findings of fact be made, "it is presumed that the judge, upon proper evidence, found facts sufficient to support his judgment." Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287, 288.

Judge Sharp properly denied the "motion to dismiss and special demurrer," and the assignments of error in respect thereto are overruled.

Defendants assign as error the overruling of the demurrer to the complaint, because as they contend in their brief the court had no jurisdiction of the subject matter of the action, because jurisdiction is vested exclusively in the National Labor Relations Board and the Federal Courts by virtue of the Labor Management Relations act, 1947, as amended.

G.S. § 1-127(1) provides that the defendant may demur to the complaint when it appears upon the face thereof that the court has no jurisdiction of the subject of the action. A demurrer lies only when the defect asserted as the ground of demurrer is apparent upon the face of the pleading attacked. Kennerly v. Town of Dallas, 215 N.C. 532, 2 S.E.2d 538; 41 Am.Jur., Pleading, sec. 208. A demurrer which requires reference to facts not appearing on the face of the pleading attacked is a "speaking demurrer," and is bad. mcDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E.2d 860, 863, where numerous authorities are cited. In that case the Court said: "The court will not consider the supposed fact introduced by the 'speaking demurrer' in passing on the legal sufficiency of the facts alleged in the complaint."

The Supreme Court of Vermont said in Vermont Hydro-Electric Corp. v. Dunn, 95 Vt. 144, 112 A. 223, 227, 12 A.L.R. 1495: "It has been held that a demurrer is not aided by facts not appearing in the pleadings, even though conceded at the hearing."

Southerland v. Harrell, 204 N.C. 675, 169 S.E. 423, was an action by an administrator to recover damages for the wrongful death of his intestate. Both defendants in apt time filed pleas to the jurisdiction of the court alleging that the North Carolina Industrial Commission had exclusive jurisdiction of the claim of plaintiff aginst them, and that the Superior Court had no jurisdiction of the cause of action alleged in the complaint. The lower court dismissed the action. This Court reversed the judgment below saying the pleas to the jurisdiction of the court are, in effect, demurrers, and no facts alleged in the pleas can be considered in passing on the demurrer, and that a defect of jurisdiction does not appear on the face of the complaint. To the same effect, see Hanks v. Southern Public Utilities Co., 204 N.C. 155, 167 S.E. 560; Ball v. City of Hendersonville, 205 N.C. 414, 171 S.E. 622.

G.S. § 1-133 states, "when any of the matters enumerated as grounds of demurrer do not appear on the face of the complaint, the objection may be taken by answer."

There is no allegation of fact in the complaint stating that plaintiff was, or is, engaged in a business affecting interstate or foreign commerce, and no allegation from which such fact can reasonably be inferred. Hence, nothing appears on the face of the complaint showing that the National Labor Management Relations Act of 1947, as amended, has any application.

In Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 213, 83 L.Ed. 126, Chief Justice Hughes speaking for the Court, said: "Thus, the 'commerce' contemplated by the Act (aside from that within a Territory or the District of Columbia) is interstate and foreign commerce. The unfair labor practices which the Act purports to reach are those affecting that commerce. Section 10(a). In determining the constitutionial bounds of the authority conferred, we have applied the well-settled...