Kendall v. Grand Lodge of the Brotherhood of Railroad Trainmen

• Decision Date: 28 June 1927
• Citation: 8 La.App. 50
• Court: Court of Appeal of Louisiana — District of US
• Parties: KENDALL v. GRAND LODGE OF THE BROTHERHOOD OF RAILROAD TRAINMEN

8 La.App. 50

KENDALL v. GRAND LODGE OF THE BROTHERHOOD OF RAILROAD TRAINMEN

Court of Appeals of Louisiana, First Circuit

June 28, 1927

Opinion and Decree on Rehearing March 7, 1928.

Rehearing Denied 8 La.App. 50 at 52.

Appeal from the Parish of Washington. Hon. Prentiss Carter, Judge.

Action by Mrs. Grace T. Kendall against Grand Lodge of the Brotherhood of Railroad Trainmen.

There was judgment for defendant and plaintiff appealed.

Judgment reversed but on rehearing judgment of District Court reinstated.

Judgment reversed and case remanded.

Ott &amp Rich, of Bogalusa, attorneys for plaintiff, appellant.

Bascom D. Talley, of Bogalusa, attorney for defendant, appellee.

MOUTON J. LECHE, J., dissents to original opinion. ELLIOTT, J dissents to final opinion on rehearing for written reasons.

OPINION

MOUTON, J.

In May, 1925, a beneficiary certificate was issued by defendant to Mart Kendall, deceased husband of plaintiff, who brings this suit for herself, individually, and for her minor daughter, Gloria, as beneficiaries thereunder.

Plaintiff alleged that the defendant association had no agent in this state on whom process could be served, and asked that it be cited through the Secretary of State.

Defendant excepted to the jurisdiction of the court, alleging that the court was without authority to cite it through the Secretary of State. The exception was maintained, and the suit dismissed.

Plaintiff appeals.

The constitution and rules of defendant association, domiciliated in Cleveland, Ohio, show that it is organized solely for the benefit of its members and their beneficiaries; that it has a lodge system and a representative form of government; that it provides for the payment of death benefits for physical disability and old age at 70, all in accordance with the provisions of section 5 of Act 256, 1912, p. 565. The defendant association must therefore be classed as a fraternal benefit society under that act.

Section 17 of that act provides that every society, domestic or foreign, shall before admission and before being licensed, appoint in writing the Secretary of State and his successors, to be its lawful attorney upon whom all legal process against it, shall be served.

The defendant association, without pretending at all that it had complied with this imperative requirement of Section 17 of said Act, came into court for the sole purpose of excepting to its jurisdiction on the ground that it had no power to cite it through the Secretary of State. The appearance of defendant in the manner stated, carried with it an implied admission or confession that it had been doing business in the state without having appointed an agent, or the Secretary of State, as its agent for service of process of which it was charged in plaintiff's original and amended petition.

A corporation cannot do business in a state without its express or implied consent which may be given on such terms as the state may see fit to impose. Old Wayne Mutual Life Association vs. Flynn, 66 N.E. 57. It may require as a condition precedent to do business in the state, that a corporation shall in writing designate an agent or put an officer on whom process against it shall be served. Ruling Case Law, Vol. 21, p. 1350, Verbo, process, par. 99. It is stated in connection with the above "that there is some conflict, however, as to whether a foreign corporation doing business within the state without complying with a statute requiring as a condition precedent the designation of a state official to accept service of process, is bound by service on such official. One view is that by doing business in the state the corporation necessarily submits to the service of process against it on the officer whom it must have designated had any designation been made, and the other, that by failing to comply with the statute, the corporation merely subjects itself to the penalties and consequences therein enumerated." In a number of cases it is said in connection with the above quotation, that the principal of...