Oster v. Brotherhood of Locomotive Firemen and Enginemen

• Decision Date: 01 July 1921
• Docket Number: 219
• Citation: 271 Pa. 419,114 A. 377
• Parties: Oster, Appellant, v. Brotherhood of Locomotive Firemen and Enginemen et al
• Court: Pennsylvania Supreme Court

114 A. 377

271 Pa. 419

Oster, Appellant, v. Brotherhood of Locomotive Firemen and Enginemen et al

No. 219

Supreme Court of Pennsylvania

July 1, 1921

Argued May 26, 1921

Appeal, No. 219, Jan. T., 1921, by plaintiff, from judgment of C.P. Lancaster Co., Feb. T., 1920, No. 51, for defendant on affidavit of defense in nature of demurrer, in case of Annie Katherine Oster v. The Brotherhood of Locomotive Firemen and Enginemen, W. J. Carter, President, and A. H Hawley, Secretary and Treasurer. Affirmed.

Assumpsit for death benefits.

Affidavit of defense in nature of demurrer. Before LANDIS, P.J.

The opinion of the Supreme Court states the facts.

Judgment for defendants. Plaintiff appealed.

Error assigned, among others, was judgment, quoting it.

The learned court below properly sustained the demurrer, and its judgment is affirmed, without prejudice.

B. F. Davis, for appellant.

K. L. Shirk and John A. Coyle, for appellee.

Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Plaintiff brought an action of assumpsit against "The Brotherhood of Locomotive Firemen and Enginemen, W. J. Carter, President, A. H. Hawley, General Secretary and Treasurer, or whoever may represent the defendant," and filed a statement of claim, in which it is averred "the defendant is a fraternal and beneficial association organized for the benefit of the members and their wives, widows, children or families," that plaintiff is the widow of Andrew A. Oster, who was a member of the brotherhood, and that she is entitled to the insurance or benefits upon his life. Claimant attached to her statement a copy of the beneficiary certificate, issued by the Brotherhood, which showed that it was payable not to her but to Frances Oster, named therein as wife.

An affidavit of defense in the nature of a demurrer was filed to the statement, in accordance with the Practice Act of May 14, 1915, P.L. 483, in which it was set forth, that the action cannot be maintained, as the defendant is sued as an unincorporated beneficial association in an action of assumpsit, and that plaintiff's remedy is not at law but by bill in equity. The court sustained the demurrer, entered judgment for defendant and plaintiff has appealed.

Affirming the Superior Court in Maish v. Order of Americus, 223 Pa. 199, we said "There is no such entity known to the law as an unincorporated association" and held...