West v. Baltimore & O.R. Co.

• Decision Date: 22 March 1927
• Docket Number: 5826.
• Citation: 137 S.E. 654,103 W.Va. 417
• Parties: WEST v. BALTIMORE & O. R. CO. et al.
• Court: West Virginia Supreme Court

137 S.E. 654

103 W.Va. 417

WEST v. BALTIMORE & O. R. CO. et al.

No. 5826.

Supreme Court of Appeals of West Virginia.

March 22, 1927

Submitted March 15, 1927.

Syllabus by the Court.

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 judgment be rendered against it merely by name; but to confer jurisdiction the members composing the association, or some of them, must be named as parties, and process served upon them individually.

An agreement between a labor union and an employer with respect to wages and conditions of service, not ratified by the members of the union as individuals, does not establish a contract between an individual member and the employer, a breach of which will sustain an action by the individual.

Error to Circuit Court, Braxton County.

Action by H. T. West against the Baltimore & Ohio Railroad Company and another. Verdict for plaintiff, which was set aside on motion of defendants, and plaintiff brings error. Affirmed.

G. C Belknap, of Gassaway, and Van B. Hall, of Sutton, for plaintiff in error.

E. A Bowers, of Elkins, and Haymond & Fox, of Sutton, for Baltimore & O. R. Co.

W. E. Hines, of Sutton, for Railway Carmen of America, Local No. 557.

MILLER J.

The plaintiff brought this action against the Baltimore & Ohio Railroad Company and the Brotherhood of Railway Carmen, Local Lodge No. 557, alleging that he was and had been a member in good standing of Local Lodge No. 557, and that prior to January 6, 1922, he was employed by the defendant company as a carman in its shops at Gassaway, W.Va., at which time he was laid off or furloughed by the company until such time as he should be recalled and given employment by it, with the benefits of his place on the seniority list kept by the company and the local lodge; that about October 23, 1922, he applied to the company for employment, but that the defendants by and through their agents, employees and committees, contriving and seeking to prevent him from retaining his proper position on the seniority list, knowingly, wilfully, wrongfully and unlawfully changed the position of his name on said list to a position less favorable to him, thereby depriving him of his right to resume employment with the company, in violation of his rights and privileges under the agreement between the union and the railroad company that furloughed employees should be permitted to resume employment in the order of their names on the seniority list kept by the defendants. Plaintiff's demand was for loss of the wages he would have earned had he been given employment when he applied to the railroad company for reinstatement.

The defendants pleaded the general issue after their demurrer to the declaration was overruled. The trial resulted in a verdict for the plaintiff, which the court set aside on motion of defendants. No grounds were assigned in support of the motion to set aside the verdict; and it does not appear from the record on what ground the trial court acted in sustaining defendant's motion.

The first proposition advanced by Local Lodge No. 557, in support of the action of the trial court, is that no valid judgment could be entered against it, for the reason that being a voluntary association and not a legal entity, it could not be sued by name, none of the parties composing the association being before the court by proper process. The summons and return do not appear in the record. The action is in the name of H. T. West v. Baltimore & Ohio Railroad Company, a Corporation, and the Brotherhood of Railway Carmen of America, Local Lodge No. 557. It does not appear that any of the members of the association were summoned to answer the complaint. In Simpson v. Grand International Brotherhood of Locomotive Engineers, 83 W.Va. 355, 98 S.E. 580, we held:

"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."

See, also, Mitch v. United Mine Workers of America, 87 W.Va. 123, 104 S.E. 292.

Did plaintiff have a right of action against the Baltimore & Ohio Railroad Company? From the evidence it appears that when plaintiff applied to F. M. Garber, the company's car foreman at Gassaway, claiming the benefit of his seniority position, Garber informed him that he had been advised by the committee of the local lodge that West had lost his seniority position, and told him the matter would have to be taken up with them. The local lodge decided that plaintiff had lost his seniority by accepting employment at another point. The matter was then taken up with H. L. Alberty, secretary of the Baltimore &amp Ohio Subsidiary Lines, System Federation No. 30, by the secretary of Gassaway Valley Lodge No. 557. What authority Alberty had does not appear; but he answered that after talking the matter over with Bros. Murphy and McGee, it was their opinion that West should not lose his seniority. Not being satisfied with Alberty's opinion, the secretary of the local lodge laid the matter before the Joint Protective Board of the Brotherhood of Railway Carmen of America, Baltimore & Ohio & Subsidiary Lines. C. W. Murphy, general chairman of...