Simpson v. Grand Int'l Bhd. Of Locomotive Eng'rs (two Eases).

• Decision Date: 11 February 1919
• Docket Number: 3597, 3647.
• Citation: 83 W.Va. 355
• Court: West Virginia Supreme Court
• Parties: J. W. Simpson v. Grand International Brotherhood ofLocomotive Engineers (two eases).andG. A. Smith v. Grand International Brotherhood ofLocomotive Engineers (two cases).

83 W.Va. 355

J. W. Simpson

v.Grand International Brotherhood of

Locomotive Engineers (two eases).

and

G. A. Smith

v.Grand International Brotherhood of

Locomotive Engineers (two cases).

3597, 3647.

Supreme Court of Appeals of West Virginia.

Submitted January 29, 1919.

Decided February 11, 1919.

1. Associations Suits Against Associations by Name Jurisdic-

tion Suit Against Members.

In the absence of a statute authorizing such procedure, an unincorporated society or association cannot be sued as an entity by its name, nor can a judgment be rendered against it merely by name. To confer jurisdiction, the persons composing it, or some of them, must be named as parties and process served upon them individually. (p. 359).

2. Courts Submission to Jurisdiction. Amendment of Pleadings and

Process J udgment.

If such a society or association, being sued as a corporation, files a plea denying its corporate existence, and such plea is as certained to be well founded, its failure to object to an amendment of the process and pleadings, so as to treat it as a fraternal benefit society, under a statute permitting actions against certain classes of such societies by name, does not amount to a sub mission to the jurisdiction of the court, to such an extent or in such manner as will sustain a judgment against it, unless the proof shows it to be such a society as may be so sued by virtue of the statute. (p. 349).

3. Corporations Assumed Name-Suit Proof of Incorporation.

Though a corporation contracting under an assumed name may be sued by such name and is estopped to deny its existence for the purposes of the litigation, proof of incorporation of the individuals so contracting is essential to the maintenance of the action. (p. 359).

4. Same Denial of Corporate Existence Estoppel.

The doctrine of estoppel is not available to persons dealing or contracting with an unincorporated association, with knowledge of its character, in an effort to prevent it from denying corporate existence on its part. (p. 359).

5. Insurance "Fraternal Benefit Society" Statute.

An unincorporated association paying no death benefits nor any disability benefits in excess of $500.00 in one year to any one person, is not a fraternal benefit society within the meaning of chapter 55A of the Code. (p. 361).

6. Same Suit Against Association as Corporation Jurisdiction Statute.

Nor is such an association identical with an incorporated life and accident insurance association or an incorporated building association or an unincorporated pension association, composed of members of the general association to which they are related, in such sense as to make it amenable to judicial process as a corporation, or to bring it within the statute authorizing judicial procedure against fraternal benefit societies, by name. (p. 361).

7. Association Judgment Action Ex Delicto Jurisdiction Judg-

ment Against Members.

An action ex delicto against such an association and individual members of one of its subordinate lodges or divisions predicated upon alleged wrongful and illegal expulsion from such subordinate organization, may be prosecuted to judgment, against the individual defendants, on failure of jurisdiction of the association itself, the parties being liable jointly and severally, if liable at all. (p. 363).

8. Same Wrongful Expulsion of Member Liability Grounds.

An inquiry as to the liability of an unincorporated association and members thereof, for alleged wrongful and illegal expulsion, participated in by a subordinate body acting under the orders of a superior officer constituting the official head of the association, involves consideration of the rights, duties, powers and obligations of the members, the subordinate bodies and superior officers and tribunals, as determined by the constating articles of agreement, by-laws, rules and regulations, often designated as the constitution, statutes, and rules, and the usages and precedents of such organizations. (p. 363).

9. Same Constitution and Rules Construction Conclusiveness.

Like other written instruments, such laws, rules and regulations are proper subjects of interpretation, and the reasonable construction given them by the officers and tribunals expressly or impliedly charged with the duty of interpretation, or of which they are reasonably and fairly susceptible, is binding upon the members and subordinate organizations of the order, and also upon the courts in the administration of justice in causes involving the rights of members, if it does not contravene public policy or any public law. (p. 363).

10. Same Expulsion of Member Action of Superior Officer Conclusiveness.

Eight of an officer of an unincorporated association, designated in its constitution, us its official head and authorized by that instrument to exercise full control over the order in general and to sign all charters and decide all controversies appealed to him, subject to a power of review by a triennial convention of the order, whose enactments and decisions upon all questions are declared to be the supreme law of the association, and to whom such officer reports his transactions, to exercise appellate power in a case in which a member tried on a charge of infraction of a rule, justifying his expulsion, if guilty, has been acquitted, in the absence of an appeal and of his own Abolition, falls within a reasonable and fair construction of the laws and rules conferring his authority, wherefore a court cannot consistently deny its existence, in the trial of an action for damages for illegal expulsion, in the absence of a denial thereof by the association's tribunal of last resort. (p. 371).

11. Same Appellate Tower of Superior Officer Suspension of

Member.

Nor can it be judicially determined by a civil court, that such an officer having additional power and authority to suspend the charter of the subordinate organization in which such trial has occurred, may not exereise his appellate power in such manner and his power of suspension conjointly and simultaneously, so as to compel expulsion or loss of the charter, the evidence adduced on the trial affording bases for two honest and reasonable opinions as to whether it preponderates decidedly against the innocence of the accused member. (p. 371).

12. Same Second Trial of Member Presumption Constitution of

Association.

The legal presumption, if any, against right in the tribunals of an unincorporated association, to subject a member thereof to a second trial for the same offense, is overthrown and excluded by the terms of the constitution of such an association, making the enactments and decisions of its highest tribunal its supreme law. (p. 375).

13. Same Expulsion of Member Damages Malice.

An inference of malice on the part of members of a subordinate association, in voting for an expulsion of a member, after having voted for his acquittal of the charges preferred against him, sufficient to sustain a verdict predicated on such theory, is not deducible from their mere change of attitude, especially when a superior officer claiming authority to do so, not negatived by any express provision of the laws and regulations of the order, nor by any decision of the association's tribunal of last resort, has intervened and annulled the first decision on the ground that the acquittal was plainly contrary to the weight of the evidence. (p. 375).

14. Same Expulsion of Member Action of Superior Officer Malice. Nor does the presence, on the occasion of the expulsion, of a member between whom and the accused there has been previous animosity or ill feeling, and who advised and encouraged a superior officer to demand rescission of what was deemed an unjustifiable acquittal and, on the occasion of the expulsion, gave his reason for doing so, but was excused from voting, on his own motion, raise an inference of malice sufficiently strong to sustain a finding thereof. (p. 375).

Error to Circuit Court, Mercer County.

Suits by J. W. Simpson and G. A. Smith against the Grand International Brotherhood of Locomotive Engineers and others. Verdict for plaintiffs against the Grand International Brotherhood of Locomotive Engineers, and in favor of the other defendants, and recovery in the Smith case reduced on motion for new trial and in the Simpson case motion for new trial overruled, and defendant Brotherhood in each case brings error.

Affirmed in part. Reversed in part. Remanded.

Sanders, Crockett & Kee and William H. Werth, for plaintiffs.

J. M. McGrath and French & Easley, for defendants.

poffenbarger, JUdge:

In each of these two cases involving the same general principles and procedure and giving rise to similar questions, two writs of error were obtained. In each, a number of individuals were joined with the unincorporated association known as the Grand International Brotherhood of Locomotive Engineers, as defendants. Under instructions from the court, the jury in each returned a verdict for all the individual defendants, and a verdict against the association, assessing the damages in the Smith case at $15,931.00, and in the Simpson case, at $11,000.00. In each, the jury in response to interrogatories propounded by the court itemized its assessment of the damages, allowing Smith $1,531.00, as compensation for the loss of his insurance, $2,400.00 for other compensatory damages and $12,000.00 as punitive damages; and Simpson, $4,500.00 as compensation for the loss of insurance and $6,500.00 as additional compensatory damages. On a motion for a new trial, the court eliminated the punitive damages in the Smith case and rendered judgment for the residue of the verdict, amounting to $3,931.00. In the other, the motion for a new trial was overruled and judgment rendered for the entire amount of the verdict. Writs of error were awarded to both plaintiffs, on their complaints of the action of the court in directing a verdict for the individual defendants, as well as other assignments of error set forth in their petitions; and, on numerous...