Newton County Farmers' & F. G. Exch. v. Kansas City So. Ry. Co.

• Decision Date: 20 January 1928
• Docket Number: No. 4295.,4295.
• Citation: 2 S.W.2d 125
• Court: Missouri Court of Appeals
• Parties: NEWTON COUNTY FARMERS' & FRUIT GROWERS' EXCHANGE v. KANSAS CITY SOUTHERN RY. CO.

2 S.W.2d 125

NEWTON COUNTY FARMERS' & FRUIT GROWERS' EXCHANGE v. KANSAS CITY SOUTHERN RY. CO.

No. 4295.

Springfield Court of Appeals. Missouri.

January 20, 1928.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by the Newton County Farmers' & Fruit Growers' Exchange against the Kansas City Southern Railway Company. Judgment for defendant was entered below after sustaining a demurrer to the petition, and plaintiff appeals. Affirmed, and cause certified to the Supreme Court.

Leo H. Johnson, of Neosho, and J. A. Sturgis, of Pineville, for appellant.

Cyrus Crane and Hugh E. Martin, both of Kansas City, and Mercer Arnold, of Joplin, for respondent.

BRADLEY, J.

This is an action to recover damages to a car of strawberries alleged to have been caused by failing to properly ice. The cause was filed in McDonald county, but the venue was changed to Jasper county. Defendant filed a demurrer to plaintiff's petition. The demurrer was sustained, and plaintiff appealed.

The demurrer alleged that the petition did not state facts sufficient to constitute a cause of action, and also challenged plaintiff's legal capacity to sue. The question of plaintiff's legal capacity to sue is the only question we deem necessary to consider.

So far as material to the question presented, plaintiff's petition alleged:

"Plaintiff, in this its amended petition, states that it is a voluntary association or organization, existing under the laws of the state of Missouri, and capable of suing or being sued the same as a corporation; that although not incorporated, it possesses rights other and different from individuals, copartnerships, and jointstock companies; that its members are fruit farmers associated together for the purpose of marketing their products under the name of the Newton County Farmers' & Fruit Growers' Exchange, each member thereof sharing in the proceeds received from the sale of such products, less expenses, proportionately compared with their part of the products sold, with rights to withdraw from membership at any time, and without joint liability for or on account of losses sustained, also without dissolution on account of withdrawal, death or insolvency of any member or members, and without assignable shares of stock therein."

According to the petition, plaintiff is a voluntary, unincorporated association. It will be observed that the petition alleges that plaintiff, although not incorporated, possesses rights other and different from individuals, copartnerships, and joint-stock companies, and that it is capable of suing or being sued the same as a corporation. These allegations as to the rights that plaintiff possesses and as to its capacity to sue are mere conclusions and will not be considered as admitted by the demurrer. State ex rel. Rabiste v. Southern, 300 Mo. 417, 254 S. W. 166. The question of the legal capacity of voluntary, unincorporated associations to sue, in the absence of specific statutory authority, has long been a vexing and troublesome point to the bench and bar. The question has often been presented, but in some instances it has passed without specific ruling. See Aurora Fruit Growers' Ass'n v. St. Louis-San Francisco Ry. Co. (Mo. App.) 297 S. W. 440.

An unincorporated association has no legal entity distinct from its members and cannot at common law maintain an action in its own name. 5 C. J. 1365; 30 Cyc. 99; 19 R. C. L. 1317; State ex rel. Hadley v. Kansas City Live Stock Exchange et al., 211 Mo. 181, 109 S. W. 675, 124 Am. St. Rep. 776; State ex rel. Great American Home Savings Inst. v. Lee, 288 Mo. 679, loc. cit. 703, 233 S. W. 20; Bruns et al. v. Milk Wagon Drivers' Union (Mo. App.) 242 S. W. 419; Road District v. Jackson, 208 Mo. App. 194, 231 S. W. 1043; O'Rourke et al. v. Kelly the Printer Corporation, 156 Mo. App. 91, 135 S. W. 1011; Adams Express Co. v. Met. St. Ry. Co., 126 Mo. App. 471, 103 S. W. 583; Met. St. Ry. Co. v. Adams Express Co., 145 Mo. App. 371, 131 S. W. 101; Williams v. U. S. Express Co., 195 Mo. App. 362, 191 S. W. 1087; Brown v. Protestant Episcopal Church (D. C.) 8 F.(2d) 149; Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 20 S. Ct. 690, 44 L. Ed. 842.

That the general rule is that a voluntary or unincorporated association cannot, in the absence of statutory authority, sue nor be sued as such, cannot be doubted. Many cases from many jurisdictions are cited in the Corpus Juris note sustaining this general rule. There are none to the contrary. Unless our statutory law authorizes plaintiff to sue in its adopted name, then it cannot maintain this cause. In Road District v. Jackson, Williams v. U. S. Express Co., State ex rel. v. Lee, and Bruns v. Milk Wagon Drivers' Union, supra, the court permitted the maintenance of the causes on the theory that such was authorized by statute.

The seventh subdivision of section 1186, R. S. 1919, reads as follows:

"Where any action shall be commenced against any voluntary or unincorporated association or organization it may be sued in the name it has selected or by which it is known or uses and summons may be served on it by delivering a copy of the writ and petition to the president or other officer, agent or employé, in charge of any office or place of business, or if it have no office or place of business, then to any officer, agent or employé in any county where said service may be obtained, and when had in conformity herewith shall be deemed personal service against such voluntary or unincorporated association or organization and authorize the rendition of a general judgment against it."

Section 1186 specifically authorizes such unincorporated associations as plaintiff to be sued, but it does not specifically authorize such association to sue. The Kansas City Court of Appeals in Williams v. U. S. Express Co., 195 Mo. App. 362, 191 S. W. 1067, supra, was considering the right to maintain a suit against a joint-stock company. The cause there accrued prior to the Act of 1915, Laws 1915, p. 225, which is now the seventh subdivision of section 1186, R. S. 1919. The question there urged was that a joint-stock company, so far as concerned the right to sue or to be sued, should be considered the same as a corporation. The court referred to section 2963, R. S. 1909, which is now section 9722, R. S. 1919, and reads thus:

"The term `corporation,' as used in this chapter, shall be construed to include all joint-stock companies or associations having any powers or privileges not possessed by individuals or partnerships."

Section 2990, R. S. 1909, now section 9749, R. S. 1919, was also referred to. This section, among other things, authorizes corporations to sue and to be sued. The court quoted from State ex rel. Pearson v. Railroads, 196 Mo. 523, loc. cit. 536, 94 S. W. 279, 282, as follows:

"A `joint-stock company,' at common law, was a hybrid midway between a corporation and a partnership; e. g., it had directors and officers, articles of association, a common capital divided into shares; these shares represented the interests of the members, and were transferable without the consent of the other members, hence, there was no delectus personæ, and the death of a member did not dissolve the company."

In Road District v. Jackson, 208 Mo. App. 194, 231 S. W. 1043, the right to sue was sustained on the theory that the road district was a statutory subdivision of the township and therefore had statutory existence and the right to sue. The same principle controlled in State ex rel. Great American Home Sav. Inst. v. Lee...