*1 v. Grаnd Appellants, W. Steed, H. C. B. Clark (2d) S. W. 404. Railroad Trainmen. Brotherhood Banc, 1931. Court en November *3 Flynn Mason, Goodman Brownrigg appellants. B. T. <& Campbell W. S. Bassieur, Long respondent. <& Yawitz for
108:8 *5 STURGrS, plaintiffs brought C. The this Court suit the Circuit City plaintiffs’ of St. Louis. The to this ease comes court on appeal judgment sustaining of that court defendant’s de- plaintiffs’ petition adjudging plaintiffs murrer to take nothing their The suit.. demurrer is the usual and standard form, reciting that defendant “comes” into court and demurs to plaintiffs’ petition and each count for thereof the reasons therein questions only raised stated. demurrer are ones to court. be considered this preliminary for
We make statement the reason that record spe- term of appeared shows at the return defendant cially only motion its motion purpose and for the filed showing quash the sheriff’s return service on the
defendant. That motion overruled defendant exoePte(I term the court’s action filed its (joint) exceptions, bill is nоt final but the defendant complains nothing. appellant At next term here and trial court filed demurrer and in does not the defendant specially attempt appearance purpose or for of the to limit its only, By if that could be done. demurrer indeed demurrer general appearance and itself to the entered its submitted passed proper jurisdict-ibn question of service out of the court. file, plaintiffs necessary they did. case. Nor was it sustaining motion the court set aside its order defend- their to have petition exceptions then save their thereto demurrer ant’s ap- A itself exceptions. bill demurrer saves for review effect, process. method preservative and needs peal no *6 1090 court, every question walked
defendant into waived and chose other try challenging sufficiency to the case demurrer the the peti- of only assigned is appeal tion. error that on this be con- and to sustaining sidered is that the in to trial court erred the demurrer petition. the challenges sufficiency plaintiffs’
The demurrer petition the of separate grounds, four defendant in its statement and but the brief in this grounds and, court has two abandoned such with commendable fairness, says: present “We have decided to this case on clear-cut issue points made under the first and third of defendant’s de- grounds proceed murrer.” These will consider. we therefore ground The first of has defendant’s demurrer “that jurisdiction defendant, person no appearing of the of the it on the every petition face of said and on each and one several counts of said voluntary thereof that is a the defendant an(^ being incapable as sued at law.” STie^ if claim de- plaintiffs demurrer states that that then association” under and be sued fendant cаn “a (Sec. 728, 1929), R. S. Revised Statutes virtue of Section respect void in and to that statute is unconstitutional and said yet ground demurrer which con- defendant extent. The other of the first other count that neither the nor tends is valid entirety, petition in its sets forth facts suffi- petition, taken against the It is defendant. cause of action cient constitute a therefore, “clear-cut issue” on defendant apparent, that the defendant, Brother- Grand of the its demurrer is rests petition, Trainmen, being, a volun- as stated hood of Railroad being law, capable sued at tary is not entity. asserts, or, is not suable as defendant Notwithstanding stated, seeks to just the matters questions jurisdiction both as cause to the inject into case some in another state and as in that accrued same of action sued on defendant, being non-resident person agent in Ob- this State. office State with no business on this bе considered de matters cannot these vi°'usl3b murrer as general by demurring, entered only as to which truth questions can raise appearance appear on the face It not petition. does face appears on the not on did occur this cause of action sued petition State, this domiciled non-resident of State, nor that defendant is a questions should These are doing here. here and not business summons or answer quash the service of motion be raised by demurrer. suggestion defendant’s in its dispose this time also at canWe provisions on the of Section relies plaintiff if demurrer (Sec. 728, R. making, S. Sub-div. 7), Statutes Bevised by legislative decree, voluntary associations suable use, State it has the name elected to the same unconstitutional, purpose because such is not ex- piessed question the title act. This dis *7 posed by Mayes of court in Wоrkers, tills Garment United 10, 18. original 1186, This there held that court the Section 1919, solely Bevised Statutes covered and dealt with manner of the serving process valid, 1915, and that be of to the con amendment stituting section, Sub-division 7 of said amended should be con subject nothing dealing court, strued as with The the same else. therefore, held said act void far as could held so it be to have voluntary entities, made associations suable but so far that as provided for bringing unincorporated a means and of manner volun by tary summons, societies into court service of the same was valid binding. words, 1186, 1919, In other Section Bevised Statutes by 1915, statute, as amended the Act of is a valid service in but is creating statute, therefore, valid as suable entities. This no has effect question voluntary unincorporated on the of whether a entity question just is not in this is or a suable State. It leaves that 1919, as it would be had Section Bevised Statutes not been by the Act amended of 1915. entity being is capable
The defendant is court if it sued law, question. It is the and we will consider also true at having legal question capacity not not defendant to be hoed is ground statute, a demurrer mentioned in the Section 1929, relating Bevised Statutes to demurrers. plaintiff legal capacity
^16 has to sue is not one statutory grounds prescribed of the seven demurrer by legal capacity said Section that defendant has not the but sued n is not such a ground. io be statutory not That defendant has legal capacity ordinarily the any event, to is a matter of defense.' be sued petition not show or state showing
the need facts defend petition only capacity ant's to sued. The is plain be concerned with tiff’s cause action, plaintiff’s legal capacity a failure to show might, effect, ground petition sue rеnder the demurrable on the capacity thereby that want on 'face appears a to sue of the petition. However, petition a mere of the to show or state failure legal showing capacity facts that defendant has be cannot sued reached demurrer but must be dealt with the answer. Tt only affirmatively petition showing Avhenthe states facts de legal capacity has not the fendant be sued that this defect can be ground reached demurrer. same true of the other of de t-o-wit, on, jurisdiction no murrer relied has case, applied par As to this this does mean defendant. not jurisdiction brought in which suit is has ticular court no has entity, no eourt defendant, defendant not a suable but that as against While law such defendant. jurisdiction to entertain suit at being raise the sufficient to free doubt to a demurrer presented, will sufficient to raise point we treat demurrer as here whether, question inasmuch as the affirmative facts stated in show petition appearing on its face that defendant is legal non-entity capable it is a being sued. being taken herein, allegations of fact therein petition demurrer, of the numerous counts discloses that each true on life insurance petition policy on is based certificate
of the
insuring
executed
issued and
named,
payable in the
person
life of
therein
beneficiary
proof of
specified
to a named
ainoia11^
good
person,
stand
insured if then
death
part
thereof
ing.
refers to and makes
The certificate of insurance
good
To be in
by-laws of the
order.
the constitution and
monthly
required
payment of
dues
standing,
make
insured
*8
monthly
constituted
fund
specified
in
These
dues
the
a
amount.
enabling
obligations.
policy
Each
was issued
to meet its
оccupation,
insured, stating
age
application
the
his
and
on the
of
in
health,
applications
facts
of his
other
usual
the condition
and
on
name
for insurance.
certificate
executed
and
by
signed
officers
chief
and attested
behalf of the defendant and
by
lodge
was member.
insured
a
officer of the
of
the
an
local
respects of
form
policies
in all material
the
These
of insurance are
use
societies and
in common
fraternal
insurance
substance
and
know,
length.
who desire
more
To those
not be set out
need
at
defend
fully
policies
insurance
and
form
conditions
these
the
and
of
organization,
refer
labor
insurance
we
a
and
ant’s activities as
5
App. 689,
222
Adams,
Mo.
Trainmen v.
Brotherhood of Railroad
Trainmen, 232 S.
(2d) 96;
Brotherhood of Railroad
S. W.
Reid v.
Trainmen, 199 S. W.
185; Murphy v.
Railroad
W.
Brotherhood of
Trainmen,
Lodge
730; Shadley
of Railroad
v. Grand
of Brotherhood
Lodge
W.
v. Grand
of
S.
O’Neal
App.
and
Trainmen,
“That lodge consisting grand large and a of one number of organization, j lodges. subordinate lodge grand and membership said of subordinate “That lodges] occupation, to-wit, persons of one hazardous is confined to railroad! engaged occupation in the hazardous and managing trainmen operating railroad trains. ‘‘ grand lodges lodge unincorporated, and subordinate That said are organized capital stock, and on are without and carried for solely profit, mutual bеnefit beneficiaries of such but beneficiary may belong to the class hold members as beneficiary lodge. grand certificates issued lodge system has
“That said brotherhood and ritualistic form government. representative work Lodge supreme legislative governing “That the Grand is the governing body, that the adopted brotherhood has constitution governing organization, grand lodge said all members adopted general and has certain rules which to do with the have relations between members inter sese and them their between itst . general employers, . . and that rules said constitutions and certificate, beneficiary issued, and the when constitute the contract organization.” beneficiary member between the and the being petition alleges, this case and we take as these true, also: facts Lodge Grand the Brotherhood of Railroad
“That now, Trainmen, mentioned, at all the and was times engaged insuring of mem the business of the lives elsewhere; unincorpo bers an in the State Missouri and that it is , organization general headquarters with rated labor State Lodge body Ohio; governing that such of the Brother Grand Trainmen, organization than composed hood of Railroad more residing in states of the one hundred thousand members different Canada; an insurance business United States and does' writing policies of insurance of Missouri and elsewhere State under the1 name and enters such contracts its members into Trainmen, which Brotherhood of Railroad Grand *9 by is known which it uses in the is and transaction the name enjoys, both in business; that and this of its insurance it exercises Union, entering into power of in other of the the states State and entity; its beneficial that heretofore as an insurance contracts the defendant insured policies of insurаnce the said certificates or the and in con assured persons hereinafter named life the of day first monthly paid before the payments to be or sideration of agreed, the month, upon the death of specified, of as therein each good standing in defendant be in assured, if said should then assured beneficiary in said person named as the association, pay the per specified; the said that the sum hereinafter policy of insurance pay each policies continued to the various sons assured in named as said insurance monthly payments from the date month said contract of insurance said repudiation until date forth; per herein set that said time at the defendant insured standing good in son, being in defendant tendered then monthly payments due, amount of his then the said monthly accept payments refused to the said and said defendant and repudiated obligations all and liabilities then and there under policy of insurance and has still re refused and said certificate plaintiffs said the amount said fuses to return to assured or thereof; that at the time of said tender the payments part fully complied with all the conditions persons had said assured arbitrary, unjustifiable un was and and said refusal said contract ’’ lawful. bring plaintiffs named petition further shows that two authority express of an trust prosecute suit as this trustees and persons the various assignments made assured of written policies insurance involved named in the various their beneficiaries legal capacity bring this Plaintiffs’ and maintain in this action. questioned. here suit that while ease was our attention to fact this parties call
Both and after the trial court had overruled pending the trial court in quash return is the sheriff’s on the summons motion to defendant’s original proceed- sued and served on the brought restrain court to waR Pr°b.ibition cog taking prohibit judge further the trial That, further suit proceeding nizance of this case and from therein. brought State of Missouri at prosecuted was of the name Of “as the Executive the. Relation of W. G. Lee and four others voluntary, ficers, unin Trustees of the funds of and Custodians of Rail Brotherhood corporated, fraternal Association known as the pro own records Taking Trainmen.” our road notice of part proceeding had ceeding, which in fact constitute a alleged application present ease, find it is we officers of petitioners are executive prohibition writ of that the voluntary, known as unincorporated fraternal Trainmen, Cleve principal with its officeat Brotherhood of Railroad secretary King land, A. E. Ohio; president, W. G. Lee treasurer, board сonstitute the petitioners other three named and the thousand five association; approximately said of trustees of Missouri; residents citizens members of said association or voluntary, unincorporated fraternal association said yard uniting ganized railroad purpose, for the and is carried on advancing purpose for the trainmen into a brotherhood men and em members, of their bettering the conditions the interests of the bargaining, advantages obtaining of collective ployment, may made employment only whereby said conditions *10 by mutual conferences adjusted better, wages may be also but that engaged in a members are negotiations; inasmuch as that occupation whereby they hazardous are uninsurable and unable protection way regular in the of life in secure insurance life insur companies, brotherhood, the said its objects, ance as one of incidental beneficiary department whereby provided has members paid death, obtain a benefit to be their families in case of or to them by of'disability, in the of monthly selves event means small contribu assessments; association, that known as being' primarily tions said beneficiary department union, trade and the said being maintained object, exempted as incidental an of the insurance laws associations, beneficiary Missouri State of relative fraternal employed being single occupation; members in a hazardous that said membership seventy has a of than order more one hundred eighty-five thousand and those members more than per constitute cent yardmen engaged upon trainmen all the railroads of the United States. prohibition application pendency said then for recites the Louis, City in
this- аction Circuit Court of of St. service Bannon, vice-presi- summons that case in St. Louis on John first defendant, dent of Trainmen, Grand Brotherhood Railroad quash motion court’s the sheriff’s return and the overruling alleges: same, “Notwithstanding and further fact voluntary, unincorpo- of Railroad Trainmen is said Brotherhood legal whereby no rated association and has existence it can be sued right entity such is con- name action at law as an unless an quash, motion to statute of State mentioned said ferred this void, the allege is unconstitutional and petitioners which statute February 2, over- on judge of the trial heretofore said court -whereby authority this motion; exists no lawful ruled said vohmtary, unincorpo- association, any voluntary, entity.” association, can law name as be sued at rated prohibition and preliminary writ of The court refused to issue opinion written without proceеding therefor dismissed the however, ques- apparent, same that the It is reasons. statement ground on this court facts, pressed tion, much the same demurrer, presented this prohibition issuing a writ of as is iioav unincorporated, being an to-wit, because inis legal in this State and be-sued capacity has now entity. plaintiffs position take not a suable fact this necessarily decided denying of prohibition the writ court this ruling adjudicada. is res negative and that question denied may have many grounds upon -which are so There being action hold such prohibition that we cannot writ given will some then taken case, action but of this decisive consideration here. organization a labor primarily apparent It bar- collective employment, questions largely with having to do
gaining, labor, working conditions, etc., hours its activities but respect
and liabilities in this are in way in- no here volved. But the defendant has also and established conducts an insurance branch of its business for benefit of and to the limited members of order. That doing large is insurance business in unquestioned. this and other states large is collects It and disburses money sums in connection with its insurance business. It is doubt- less true carry that thousands of railroad trainmen no other insur- ance than policies by certificates or issued this association. The certificates of insurance issued are essentially contracts. insurance Thereby in payment consideration premium aof in monthly the form dues, agrees pay person undertakes and beneficiary named as money disability a certain sum of on death or of the insured.
Dealing with association, defendant as an insurance which stands admitted, argument we are not impressed with the that our laws large are so carry deficient associations like this оne can and do on State, making their in insurance, business contracts of col lecting by way premiums thousands dollars dues, and when and brought perform into court to answer for violations of or refusal to they contracts, defy such any remedy by can the court to afford non-entity asserting their legal capacity and want of sued. to be cognizance life, laws of this State take of the fact that accident disability solely by is not carried on and insurance individuals corporations. Beneficiary incorporated associations not ancient origin long insuring and have carried on the business of their mem ‘‘ ’’ ‘1 association, bers. commonly used, body The term applies to a charter, persons acting together, upon without the methods but incorporated bodies, by prosecution forms used of.some enterprise.” common J. Per C. and cases there [5 сited.] carry haps enterprise the most foster common associations on nat protection is that of mutual and relief misfortune. This urally Rubey Shain, It takes the form is said of insurance. 207, 209, construing provision, that "the constitutional company.” might apply word to an association well is, fact, merely incorporated corporation an which, complying prescribed with certain conditions by law, authority. corporate with business carried on clothed organization corporation little, form the incorporation any, changed of the asso if fact ciation. the bus- regulating governing apparent our statutes
It cognizance that such disability takes insurance of life and iness may continue to be carried business has been and by corporations or indi- as well as voluntary associations in Chapter 37, victuals. Thus we have 1929, relating Revised Statutes generally, to insurance an Article 13 dealing with fraternal associ- regulating ations and such associations the transaction of insur- provides: business. Section 5990 of ance “Any Article cor- poration, society, voluntary association, order or capital without stock, organized solely and carried on for the mutual benefit of its beneficiaries, lodge having their for profit, members and and not system with ritualistic work representative gov- form of form of *12 ernment, provision payment and which shall make for the of benefits 5994, is hereby in accordance with section declared be a fraternal to society.” It not, benefit should be noted that said nor section does any statute, corporations require does other make such associations or precedent doing them to become such as condition to business may incorporate, this Such associations not required State. but are 6002, R. to do so. S. [Sec. 1929.] apparent association, though is in-
We think it that defendant not corporated, meaning is a fraternal benefit association within the organized solely It is and carried on for the mutual said statute. beneficiaries, stock, capital their benefit of its members and without lodge system represen- with form of work and having ritualistic government. appear Tf all essential not form of facts do lative these petition least not present petition, the such at does on the face of This, said, they is affirmatively do not exist. we have show raising required question of a defendant on a demurrer the all having capacity be sued. to not “Every 33 provides: certificate issued 5997 said Article
Section provided specify society amount of benefit any shall the certificate, provide char- thereby, that the the and shall incorporation, or, voluntary if asso- ^er or articles association, ciation, the constitution articles membership and medical society, application and the laws amendments to each examination, signed by applicant, and all society and the thereof, agreement between shall constitute provides that articles of also member.” Said section enacted subse- by-laws association constitution binding on shall be certificate quent to issuance of benefit beneficiary. member and his 6021, 1929, part said Article also Revised Statutes Section benefit 33, on fraternal requirements governing certain imposing- be in this shall “nothing article societies, provides contained which limit their . . . societies apply to affect or construed to “no further that occupation,” and membership any hazardous one this section society, exempt by provisions which is insurance) give or allow shall (fraternal requirements of this article pro- compensation for any person allow give or promise or clearly new members.” The defendant comes curing exemption provisions of this statute. within the 1929, taken Note should also be of Section Revised Statutes provides ‘corporation,’ chapter, that “the term used this joint companies shall be construed to include all stock or associa- any powers privileges having possessed by individuals tions or partnerships.” alleged It present petition this de- powers possessed by privileges fendant has individuals law partnerships, is a conclusion to be drawn but that than a of fact admitted court rather statement demurrer. (2d) [Mayes Workers, 333; v. 320 Mo. United Garment S. W. County Exchange & Newton Farmers’ Growers’ Kansas Fruit City Co., (2d) 31 W. So. S. Railroad 803.] Evidently mentiоned, others, statutes above and there voluntary unincorporated associations, such as authorize carry insur- on its business of insurance in State to make Contracts are not contracts ance contracts such as here involved. they say enforceable. that an association like defend- unless To necessarily valid contracts —contracts ant make contracts means can against binding parties and enforceable It that are on the them. insurance, say absurdity defendant can make contracts of legal capacity to make If defendant has but cannot sued thereon. *13 be legal If insurance, capacity be sued thereon. a contract of it has legal entity making contracts, legal it retains such it a when entity when sued thereon. 387, (2d) 787, speaking Cox, v. 318 1 W. ex rel. Mo. S. State ‘‘ ’’ Highway Board, Missouri State in the name of contract made a by purpose, adopted parties for that a mere name certain was “They into such a contract under the could enter
this court said: Board,’ Highway or the ‘Inscrutable State name of the ‘Missouri ’ they fancy, did provided Four, tickled their or other name that question thereby perpetrate a fraud. There can no intend not contract entered inevitable that. conclusion is about So the Highway by State styling into individuals themselves ‘Missouri they behalf Board,’ for and of themselves wherein contracted on highway, was not forbidden miles of state construction of five in all re against public policy, but law; immoral or by nor was it spects valid.” by rule invoked course, unmindful of Of we not entity legal no distinct has unincorporated association that an action, in its an law maintain at common and cannot
its members Cyc. 1365, 1369; 13 J. name. C. or in such [5 own name be sued & Fruit Growеrs’ County Farmers’ 1317; 99; L. Newton 19 R. C. 617, 31 W. Co., S. 326 Mo. City Railroad So. Exchange Kansas v. As defendant states there (2d) 803, cases and the numerous cited.]
1099 brief, in “the Grand the Brotherhood Train- of Railroad voluntary men is association and is entity a suable in the name adopted the members thereof unless provision there some making the statutes the members suable in adopted the name grant If yet them.” we law, to be a correct statement provisions we are constrained to hold that the noted, our statutes above association, are sufficient to make such an at least contracts, entity adopted insurance suable the name it making rulings previous used such contracts. The this court holding. justify such Syz Wagon Union, Milk 24 (2d)
Thus et al. v. Drivers’ W. S. 1080, voluntary against unincorporated, was a suit an association issuing urged The insurance contracts. said: “It is also there ground judgment defendant, being for reversal as а that the voluntary unincorporated entity. is not a suable against point must defendant. be ruled It that section true 1186, 1919, unconstitutional, has been held Revised Statutes so voluntary unincorporated far as it constitutes associations suable union, being voluntary entities. But the defendant having powers privileges possessed part individuals or | Mayes nerships, entity is a suable without the aid of said statute. (Mo. (2d) 6 Sup.),
v. S. W. Garment Workers of America United 333; Miller, 322; 276 Mo. Williams v. United States Wiethuechter Co., App. Express Mo. 362.]” America, Mayes v. United Garment Workers of voluntary (2d) 333, against unincorporated, S. W. was a suit however, not, an insurance contract. association. That suit of 1915 Section held that the amendment court there create attempted far to or did Revised Statutes so entities, is unconstitutional because suable associations however", “As court, then said: act. The defect in thе title to the such, incorporated many unions are fact trade a matter of unions trade course, be sued. Some can sue and physical dis death or upon of benefits provide payment for the *14 provisions the with of the ability members accordance of their associations, beneficiary adequate and dealing with fraternal statute upon process them. of for the servicei provisions made law having powers having or not may voluntary associations Others . . partnerships. . or by individuals possessed privileges not or merely act whole unconstitutional the bound to declare We are not matter in new While the is unconstitutional. part of it a because TV, 28, Article Section with of 1915 conflicts amendment the voluntary or un- to constitute it undertakes insofar as Constitution entities, it does organizations suable incorporated associatiоns and serving of manner the prescribes it the that so offend to extent 1100
process upon organizations, be, if there such associations and properly as are otherwise constituted suable entities.” 242 Wagon Union, 419, Milk v. Drivers’ W. was Bruns S. against voluntary association, “Defendant a case a the court said: court, point, appears that makes for the first time this also the union, unincorporated was defendant, being voluntary a labor the this capable suing being under the of State. of sued laws 1919, provides how statute, 1186, Statutes But our Revised section associations, upon voluntary unincorporated writs be served legal organization entity, is a entitled and such and an this Miller, corporations. v. sue and be same as sued the [Wiehteuchter Express 322; Co., App. 195 Mo. Mo. Williams States v. United 362.]” McIntyre Stock Shipping Association, App. 936, v. Live (2d) 77, given by W. 11 S. was a suit to recover on a check defend- ant, voluntary shipping stock live association. The check was given purchase shipped for the of stock which the defendant and sold proceeds. alleged and received The defendant its answer the voluntary Shipping “said Stock Association was Live associa- tion, organized purpose shipping for livestock to market for organized themselves it was persons; purely and other for purpose profit and and of convenience received no accommodation charge from its no transactions made services other than expenses loading shipping.” such as were to cover sufficient against The suit the association in in which the name it trans- urged point appeal court “The first acted business. said: voluntary parties all is that members of must be made defendant,” citing supporting number cases same. “In our Union, etc., 419; opinion cases of Bruns v. Drivers’ S. W. Co., 362, 1087, Express App. 191 S. W. Williams v. 195 Mo. Trainmen, v. 261 W. O’Neal Brotherhood of Railroad S. control against case, accordingly present we rule defendants on point urged.” Rail- Shadley Grand Brotherhood The case of against 254 W. Trainmen, App. 212 Mo. S. road in- that here same defendant and the of action much like cause answer admits that volved. The court there said that defendant’s engaged insuring the lives it is a association and beneficiary members, certificate referred it issued preamble petition. defendant’s It is also stated designates purpose brotherhood as defendant constitution membership limits railroad association and calling. persons engaged in a hazardous trainmen, class organization is, appears, as it then said: “The feature organization, with first, labor union or trade *15 concerned, hеre but we are not as such it issues to its members con- tracts known as for paid certificates benefits to be to a beneficiary- of death of organization ease the insured member. The insures specific of for the lives its members paid monthly sum to be as a assessment. The contract between plaintiff and the all, obligation if a contract is at one insurance. is It an pay beneficiary of the certificate a certain money sum of in the event of the death of the insured. ¥e hold if this contract reason- is ably open to constructions, two the one most favorable to the insured must adopted, be whatever the classification of the defendant be organizations.” in the calendar of fraternal The court ruled that defendant’s answer did not state sufficient in facts law to constitute a defense to plaintiff’s action, plaintiff cause of and that can recover. Murphy Trainmen, case v. Brotherhood of Railroad against
S. W. was a suit this same defendant on one of con- tracts for insurance. up The defendant set a number of defenses only beneficiary allowable to fraternal associations. court held that because complied had not defendant with certain statutory beneficiary provisions;' associations, relative to fraternal its contract must be held to of general be one or old-line insurance. “Notwithstanding The court said: defendant’s claim is it regarded fraternal benefit contract herein be must ordinary contract, being as an life insurance is treated subject governing companies. all the laws life . . . insurance organization society Whether a fraternal within is benefit def- statute, . depends upon inition of our . . the existence of a relating organization, purpose number facts to its method doing statutory specified definition, business order for put issue, pleaded such matter to be the defendant should have proved those facts.” holding voluntary, a number cases There are that whether a special priv- association is or entitled to the ileges depends accorded to fraternal benefit societies on a number facts, not, old- but if its contracts are nevertheless valid as it general Brother- line or insurance. v. Grand [O’Neal Trainmen, 212; App. 216 Mo. of Railroad Reid Brotherhood hood Trainmen, 232 S. W. Railroad 185.] Trainmen, S. Reid v. Brotherhood Railroad W. policies was on one of its of insurance. The sued same duly to, “Defendant, sworn said: its answer denied alleged voluntary unincorpo- it was a corporation Ohio, organized laws of under and virtue rated association concerned, is, a fraternal as its business and that it so far insurance membership hazard- society, is limited to the one benefit trainmen, certificates are occupation railway and that benefit ous *16 1102 The court ruled only to members.” that because defendant
issued with complied beneficiary our statutes in reference to fraternal liad not policy regarded associations, gen- of insurance must be as one of governing subject misrepresenta- to our eral insurance and statutes tions, etc. Savings Lee, 679, v. 288
In ex rel. Home Institution Mo. State voluntary held association in the of a build- this court nature association, though incorporated, was to ing loan not entitled when authorizing to do business this State it com- a certificate it statutory regulations respect. court plied with certain article of the Constitution and statute said: “It obvious by legislative joint-stock companies to do not fiat referred convert voluntary corporations require incorpo- their associations into or or doing voluntary law business. At common unincor- ration before By . porated not sue be sued. . . could or an amend- associations brought 1760, 1909; suits ment Section Revised Statutes be against ‘in such association the name it has selected.’ [Sec. 1186, Respondent R. S. will not contend that this amend- 1919.] required incorporated ment such societies made cor- or them porations.” The then relator was held entitled to authorizing to do in this State as an unincor- certificate it business porated association. Miller, 276 322, v. this court Wiehtuechter considered this
question alleges: That petition plaintiffs and said. are mem “The Union, 2; International Musicians’ No. bers of the American Local voluntary trades- that said local union is benevolent association or union; joined members of said union are too numerous to be that the parties . plaintiff as herein. . . some discussion in the There is briefs as to whether such an association could maintain a suit in its own name. While there have been some decisions this State to bring that an association could not effect suit name, present probable statute it is own under the that such Unincorporated joint-stock companies might be maintained. suit recognized to sue have been as entities entitled and be sued in this H State, governed by relating corporations within and statutes . Co., 362; Express App. v. U. S. 195 Mo. State ex rel . [Williams Railroads, 536, Voluntary associations, 196 Mo. H like 537.] considered, joint-stock with H the one here statutes classed companies. Section Statutes follows: ‘The Revised H ‘‘ ’’ corporation chapter, term used in this shall be construed to H H joint-stock companies having any powers include all or associations privileges possessed by partnerships.’ or individuals or SectionH chapter provides every corporation shall H power of that have language extending® 2963 in ‘to sue and be sued.’ The of Section corporations obligations of to other privileges organizations^! organizations describes those other included within provisions chapter, as ‘those having any powers or privileges possessed partnerships.’ individuals or . . . Section 7109, Revised Stat 1909, in defining utes a benefit association, declares it be a ‘cor poration, society organized formed f6r carried on the sole benefit of its members and beneficiaries, their ’ profit, and not for and sets out certain privileges which such associa may enjoy tion powers may possess. Legislature evidently understood that such associations he sued, muid Aсt they provided process a method for service upon them the same *17 corporations. upon as 1915, p. allegation [Laws of the 225.] petition is that local union brought the on behalf of which this suit is ‘voluntary is a benevolent or association . . trades-union’ . and organization that the parent incorporated, is duly although the local union behalf brought on of which the suit is Now, is not. if the local authority union has to sue and be sued in its own name then the prosecuted suit is not party of the in interest, name real as provided 1729, in Section Revised Statutes 1909.”
In O’Neal v. Grand of the Brotherhood of Railroad Train- men, 212, 216 Mo. App. held this court defendant on liable policy of insurance similar that in to involved this case. The court held because the complied that defendant had not with the statutes beneficiary associations, policy fraternal relative to of insurance governed general would be laws relative to con- insurance tracts, is, that old-line insurance. The court there also held that individual or acting members order those officers as lodges individually policy of subordinate are not liable on such con- tracts. Co., Express 362,
In U. App. Williams v. S. Mo. suit joint company. quoted against The court stock statute here- “corporation” defining joint tofore mentioned the term to include any companies having powers privileges stock or associations partnerships; possessed providing' individxials and also section power corporations sued, which, have should sue be all statute, joint companies. applies stock reason this The court statutes, held, in of these that “we then view cannot but arrive at defendant, being joint company and, stock the conclusion that privileges possеssed therefore, having powers and individuals corporation purpose must as a partnerships, be treated for the and, such, S. can ‘sue chapters 33 and and: of said [R. 1909] equity’ in court law complain and defend sued, be Express Adams entity.” court then overruled Co. v. legal 471, Metropolitan Railway Railroad, App. 126 Mo. Street Street App. Co., 145 Mo. 371. Express Adams Co. v. Adams, 222 App. Trainmen v. of Railroad In Brotherhood protection (2d) 96, tbis defendant itself invoked tbe 5 S. W. right interplea in an this State case asserted its the courts of proceeds bring against to the of one of its bene- suit rival claimants fit certificates. go Supreme in
We need not
ease
as far as did the
Court
this
v.
States in United Mine Workers of
Coronado
the United
America
holding
Co.,
unincorporated
S.
66 L.
Coal
259 U.
Ed.
in
associations,
in actions sound
such as is
are suable entities
holding
court followed
in
in contrаct.
so
ing
tort as well as
England in
case
Taff Vale
ruling
highest
426, 1
Ry.
Ry. Servants, A.
Br. R. C.
Amalgamated
Soc.
C.
Co.
Supreme
right
Court
to sue
832. The United States
there based
existing
very
such
“the
necessities of the
association as
doing justice
impossibility
the utter
otherwise”
conditions and
against
injured
pointed
persons
out that “to remand
to a suit
damages”
recover
four hundred
members to
each
thousand
remedy. All
pres
all
we
hold in
would be denial of
need
engages
case is
when such an
ent
insuring
members,
State
and elsewhere
the business
whom
whom collects
it issues insurance contracts and from
premiums, then such
sued
of this
associations
be
courts
State,
they
business,
in the name in which
contract and do
on causes
on such contracts.
growing out of
based
of action
well
estoppel might
applied
doctrine of
We think also that the
*18
having
This
hundred
over one
to a case like this.
regulаrly
and
with
constituted officers
thousand members
organization,
perfeet -working
appearance,
a
has the
form
legal entity.
doing'
corporation
a
It
method of
business of
legal entity
chosen name
does business as
under and
has
a
a
capable
contracting
holds
out as
that name.
itself
use of
It
name
enter into insurance contracts and
name and
does
premiums
and accumulates funds to meet
in that name collects
obligations.
sued
When
such contracts
the name
contract
ought
say
making same, it
be allowed to
it has used in
intangible non-entity
myth
incapable
being
it is mere
—an
Railway
v.
Co.,
595, 604,
In West Missouri Land Co.
sued.
company
dealing
contracting with
person
with and
is held
it
denying
company
from
that such
estopped
will be
corporation
aas
many
supporting
law
cases
corporation.
is familiar
This
is a
also
an associatiоn con-
cited;
it
be true that
should
could
same
entity
legal
estopped
will be
from
as a
individuals
tracting with
Juris,
entity.
Corpus
legal
page 1336,
In
fact
denying
it is in
legal entity
with an association as
who deals
“One
is said:
consequence
business,
receives from
transacting
capable value,
things
estopped
money
other
denying
legality
[Petty
Brunswick, etc.,
v.
its existence.
Co.,
Railroad
109 Ga.
666,
farther accordance with the views expressed. herein Ferguson Hyde, GG., It is so ordered. concur. foregoing opinion CURIAM: The C., in Division
PER Sturgis, hereby One, adopted opinion as the of Court en Banc. All of the judges concur. Authorizing Funding Matter Issuance Bonds Consolidated Appellant, County, ool District No. Greene
Sch Day Taxpaying et al., Charles of Consolidated Citizens and Re County, School District No. Greene Interveners spondents. (2d) 43 S. W. 428. Banc,
Court en November 1931.