Ruggles v. International Ass'n, Etc. Iron Workers

• Decision Date: 03 September 1932
• Docket Number: No. 30349.,30349.
• Parties: RUGGLES v. INTERNATIONAL ASS'N OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS.
• Court: Missouri Supreme Court

52 S.W.2d 860

RUGGLES v. INTERNATIONAL ASS'N OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS.

No. 30349.

Supreme Court of Missouri, Division No. 1.

September 3, 1932.

Appeal from St. Louis Circuit Court; Moses N. Hartmann, Judge.

Action by Thomas H. Ruggles against the International Association of Bridge, Structural and Ornamental Iron Workers. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Frank Coffman, of St. Louis, for appellant.

Igoe, Carroll, Higgs & Keefe, of St. Louis (Frank P. Walsh, of Kansas City, of counsel), for respondent.

HYDE, C.

This is an action for $31,800 actual and $25,000 punitive damages for wrongfully suspending appellant from respondent organization. Appellant's petition contained the following allegations concerning the character of the respondent and his connection with it, to wit:

"Plaintiff states that the defendant, the International Association of Bridge, Structural and Ornamental Iron Workers, is now and was at all times hereinafter mentioned, a voluntary association (italics ours) and labor union, organized outside of the State of Missouri, but since its organization and long prior to the times hereinafter mentioned, came into the State of Missouri, and established its principal office and place of business in the City of St. Louis, Missouri, and now has, and at all times hereinafter mentioned had, its principal office and place of business in the City of St. Louis, Missouri, and doing business under the name adopted by it of the International Association of Bridge, Structural and Ornamental Iron Workers.

"Plaintiff further states that said defendant is now, and was at all the times hereinafter mentioned, and long prior thereto, organized and doing business in the State of Missouri, as a fraternal benefit society, having its principal office in the City of St. Louis, State of Missouri, and doing business as a fraternal benefit society; being without capital stock and organized and carried on solely for the mutual benefit of its members, and their beneficiaries, and not for profit, and having a lodge system, and ritualistic form of work and representative form of government, and at all said times made provisions for the payment of benefits to its members in case of death, and provided for old age pensions, and said defendant association and organization has, and at all the times hereinafter mentioned, had more than five hundred members, and that said defendant at all said times possessed and now possesses powers and privileges not possessed by individuals or partnerships, and at all said times exercised and is now exercising such powers and privileges under the laws of the State of Missouri, and that under and by virtue of the Constitution and laws of the State of Missouri, said defendant is now and at all the times hereinafter mentioned was, a corporation, having an office and place of business in the State of Missouri.

"Plaintiff further states that for many years next before the month of September, 1924, he was a member in good standing of the defendant association, being affiliated with Local No. 18 of said association; that said Local No. 18 was one of the subordinate bodies or locals of said International Association of Bridge, Structural and Ornamental Iron Workers, and was business agent of said Local No. 18.

"Plaintiff further states that as a member in good standing of said Local No. 18, and of said International Association of Bridge, Structural and Ornamental Iron Workers, under its constitution and by laws, he had the right to exercise his trade or calling as a union iron worker in the City of St. Louis, Missouri, and in all parts of the United States where he might find employment; that as a member in good standing of said Local No. 18, and of the said International Association of Bridge, Structural and Ornamental Iron Workers, he was entitled under the laws of said order to a death benefit of four hundred ($400.00) dollars, and to an old age pension of twenty-five dollars per month, and as business agent of said Local No. 18, he was entitled to and was receiving a salary of Thirty-nine Hundred ($3,900.00) dollars a year."

Appellant then alleged that he was wrongfully debarred from the association for a period of five years; and that the local No. 18, of which he was a member, was dissolved, "depriving the plaintiff of his office as business agent of said Local No. 18, and of his membership in said International Association, and of all the rights and privileges attending upon said membership, including his right to pursue his trade or calling as a union iron worker in the City of St. Louis, and in the United States of America, his old age pension and death benefits, his office and salary as business agent of Local No. 18."

Upon the filing of the above petition, summons was issued to the sheriff of the city of St. Louis commanding him to summon the International Association of Bridge, Structural and Ornamental Iron Workers. The sheriff made return stating that he had served the writ on the International Association of Bridge, Structural and Ornamental Iron Workers, a corporation, by delivering a copy of the writ and petition to the secretary of the said defendant corporation, he being in said defendant's usual business office and in charge thereof, the president or other chief officer not being found. Defendant filed a motion to quash the sheriff's return upon the grounds that "said return of service describes defendant Association as `a corporation' and shows service of summons upon defendant as a corporation, whereas it appears upon the face of the petition and the record herein that defendant is a voluntary association" and "because the attempted service of summons in this cause, in the manner described and the sheriff's return of service, is without warrant and authority of law and does not bind defendant Association." The motion to quash the return also contained all of the grounds set up in the motion to quash summons hereinafter referred to. This motion was sustained.

Defendant also filed a motion to quash the summons for the three following reasons:

"(1) Because it appears upon the face of plaintiff's petition herein that the International Association of Bridge, Structural and Ornamental Iron Workers, named as defendant in this suit and required by the summons herein to appear and answer, is a voluntary association and as such voluntary association cannot be sued as an entity or in the name of said association.

"(2) Because it appears upon the face of the petition and record herein that this Court has no jurisdiction of this cause, the subject matter thereof or the parties thereto, and this Court being without jurisdiction herein the issuance of said summons was in excess of the jurisdiction of this Court and said summons is wholly void.

"(3) Because the named defendant, being a voluntary association as shown on the face of the petition and record herein, can neither be sued nor summoned as an entity."

Defendant in said motion also assigned as an additional reason for quashing the summons the unconstitutionality of the amendment of 1915 (Laws of Missouri 1915, p. 225), providing a method of service of summons upon voluntary associations, the same now being the seventh subdivision of section 728, R. S. 1929 (Mo. St. Ann. § 728, subd. 7). The motion to quash the summons was also sustained, and thereafter the following final judgment of dismissal was entered: "Special motions of defendant to quash summons having been sustained, on December 2, 1929, cause assigned to Division No. 1, and final judgment of dismissal entered at cost of plaintiff."

The record presented here contains no bill of exceptions. It sets out the petition, summons, return, motion to quash return, motion to quash summons, orders sustaining both motions, and final judgment of dismissal. Respondent contends that the rulings on these motions are not here for review because they are matters of exception and not part of the record proper. Motions and rulings thereon are not part of the record proper. Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 328 Mo. 782, 41 S.W.(2d) 1049, 78 A. L. R. 930. However, there is an exception to this rule, namely: When a pleading, although denominated a motion, "performs the office of a demurrer and disposes of a case, it may be treated as a demurrer and therefore a part of the record proper of which we may take cognizance, although it is not contained in the bill of exceptions." Home Insurance Co. of New York v. Missouri Power & Light Co., 327 Mo. 1201, 39 S.W.(2d) 1039, 1041; Mayes v. United Garment Workers of America, 320 Mo. 10, 6 S.W.(2d) 333, 337; Dickey v. Webster County, 318 Mo. 821, 300 S. W. 1086; Sebastian County Coal & Mining Co. v. Fidelity Fuel Co., 317 Mo. 610, 296 S. W. 154; Shohoney v. Quincy, O. & K. C. Railroad, 231 Mo. 131, 132 S. W. 1059, Ann. Cas. 1912A, 1143; Garber v. Mo....