Streib v. Local Lodge No. 27 of I. B. of Boiler Makers, Etc.

• Decision Date: 23 June 1931
• Docket Number: No. 21530.,21530.
• Citation: 40 S.W.2d 519
• Parties: STREIB v. LOCAL LODGE NO. 27 OF INTERNATIONAL BROTHERHOOD OF BOILER MAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA et al.
• Court: Missouri Court of Appeals

40 S.W.2d 519

STREIB v. LOCAL LODGE NO. 27 OF INTERNATIONAL BROTHERHOOD OF BOILER MAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA et al.

No. 21530.

St. Louis Court of Appeals. Missouri.

June 23, 1931.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Joseph J. Streib against Local Lodge No. 27 of the International Brotherhood of Boiler Makers, Iron Shipbuilders and Helpers of America, and others. Judgmen for plaintiff, and defendants appeal.

Reversed and remanded.

Lawrence McDaniel and F. E. Williams, both of St. Louis, and David F. Carson, of Kansas City, Kan., for appellants.

John T. Manning and James T. Roberts, both of St. Louis, for respondent.

HAID, P. J.

This is an appeal from a judgment for $3,894 rendered in favor of the plaintiff against the defendants for alleged unpaid salary or wages due him.

The amended petition alleged in substance that the defendant International Brotherhood of Boiler Makers and Iron Shipbuilders and Helpers of America is a voluntary association and doing business as a fraternal benefit society, and as such is engaged in selling and issuing policies of insurance; that Local Lodge No. 27 is the local branch of said association; that prior to August 4, 1921, plaintiff was elected business agent of Local Lodge No. 27, at a salary of $60 per week. The petition then alleges the following: "That on August 4th, 1921, owing to the fact that said Local Lodge No. 27 had not sufficient funds on hand to pay him his salary, it was agreed by and between plaintiff and defendants that they should pay him the sum of thirty-five ($35.00) dollars per week, it being then and there agreed and understood between plaintiff and defendants that the balance of twenty-five ($25.00) dollars per week would be paid to him as soon as the treasury of said International Brotherhood had sufficient funds for that purpose."

The plaintiff admitted the collection of some $960 which he did not account for to the defendant and for which credit should be allowed.

The record discloses that the plaintiff continued to work at the reduced salary of $35 per week until May, 1925, when his salary was restored to $60 a week. Therefore the petition is for the recovery of $25 per week from August 4, 1921, until May, 1925.

The defendants each filed a general denial to the amended petition, and the case was tried on such pleadings.

The evidence discloses the facts alleged in the petition.

The plaintiff testified that he did not know how much money the local lodge had on hand on September 1, 1926, when a resolution was passed by the local lodge declaring his office vacant, but that in 1924 or 1925 it had one thousand or fifteen hundred dollars, "or it might have run up to two thousand." Upon redirect examination, he testified that at the time he made a demand for back pay he surmised that there was about $1,000 on hand; that "they claimed they had a lot of other previous bills to pay"; that attorneys and doctors were demanding it; that there was an attorney's bill which had been due since 1921, and had never been paid.

Thomas Bunting, a witness on behalf of plaintiff, testified that the local lodge was short of money; that no special time was fixed about paying at any future time, but the understanding was that the time was to be when Local No. 27 had money enough to pay back the difference.

Mortimer J. Gleason, a witness for plaintiff, testified that at the time of the reduction of the salary of plaintiff he asked Mr. Bunting if he meant that that pay would be retroactive, and he answered, "Yes, it would be back pay if they ever got money enough to pay him."

Marvin Putnam, a witness for plaintiff, testified that the purpose of the motion was "to carry on for the time being until it got better and then they were to reimburse the business agent."

On behalf of the defendant, M. A. Maher testified that the salaries of the officers, the business agent, the secretary and the treasurer of Local No. 27 were paid by said local; that the international organization had nothing to do with fixing these salaries or paying them; that he was familiar with the financial condition of Local No. 27; that the actual amount in the treasurer's hands on October 29, 1926, was $226.50.

On cross-examination he testified that plaintiff was not the business agent of the International, because he was not elected by the International, nor had they anything to say as to his election or what his salary should be.

Edward Canavan testified that at the time of the hearing Local No. 27 had $627 on hand; that since his election as president in December, 1928, the local lodge never had $1,500 in the treasury at one time.

In rebuttal, Fred. Scheer, for plaintiff, testified that he was treasurer of Local No. 27 in 1923 to 1926; that the bank book he identified belonged to Local No. 27, and showed a balance on August 7, 1925, of $1,973.43, and on December 18, 1925, a balance of $1,827.52.

Joseph J. Streib, the plaintiff, testified that Local No. 27 had about $1,900 in the bank at some time during 1925 or 1926.

On sur rebuttal Edward Canavan, for defendant, testified that, at the time of the making of the report of the board of trustees of Local No. 27 from December 18, 1926, to March 16, 1927, it had a total of $774.48; that on September 27, 1927, it had a balance of $803.15.

The first error assigned by the defendants is that the judgment should be reversed because the amended petition fails to state a cause of action.

The basis of this contention is that, although the petition alleges that plaintiff was to be paid the difference between $35 per week and $60 per week as soon as the treasury had sufficient funds for that purpose, the petition wholly fails to allege that the treasury had such sufficient funds.

We think it may be stated as a rule that, in the absence of a direct attack upon the petition, then upon an objection to the introduction of evidence or other objection made during the trial of a case, every intendment is to be indulged in favor of the petition, when such objection relates only to some defect in the manner of the statement of a cause of action which could have been remedied by an amendment of the pleading, Hoffman v. General Exch. Ins. Corp. (Mo. App.) 16 S.W. (2d) 716, loc. cit. 717; Weber v. Terminal R. Ass'n (Mo. App.) 20 S.W.(2d) 601, loc. cit. 603; Rodgers v. St. Louis-S. F. Ry. Co. (Mo. App.) 31 S.W.(2d) 546, loc. cit. 550; Melvin v. Cater, 221 Mo. App. loc. cit. 1216, 299 S. W. 103; Timmermann v. St. Louis Architectural Iron Co., 318 Mo. loc. cit. 428, 1 S.W.(2d) 791; but this does not apply when the petition fails...