Opinion
No. 30506.
April 17, 1933. Suggestion of Error Overruled May 1, 1933.
1. APPEAL AND ERROR.
On appeal from decree quashing process and dismissing bill, only question that member of garnishee association could raise was suability vel non of association.
2. ASSOCIATIONS.
At common law, unincorporated association is not suable in its own name.
3. TRADE UNIONS. Brotherhood of Railroad Trainmen, an unincorporated association, held suable in its own name ( Code 1930, sections 5246, 5250, 5262).
Facts disclosed that Brotherhood of Railroad Trainmen was unincorporated labor union operating throughout United States on lodge system with representative form of government, and that it operated for mutual benefit of its members; one of its activities being issuance of benefit certificates.
4. APPEAL AND ERROR.
Secretary of garnishee association, because of his membership in and service of process on him, could, on appeal from decree quashing process, have suability vel non of association judicially determined.
APPEAL from Chancery Court of Hinds County.
Chalmers Potter, of Jackson, for appellant.
There is no such identity between the parties hereto which prevents the maintenance of this suit.
United Mine Workers of America v. Coronado Coal Company, 259 U.S. 344; 66 L.A. 957, 42 S.C. Rep. 570, 27 A.L.R. 762.
The Mississippi Reports have a number of cases where this organization was sued as a quasi corporation, separate and distinct from the individual members that composes it, on insurance contract.
There is no such identity between Whitney the nonresident defendant and the Brotherhood of Railroad Trainmen so as to prevent the trainmen from being made garnishees in this action.
The sole criteria is whether a person, within the jurisdiction of the court, is indebted to a nonresident party against whom the principal relief is sought.
Susquehana Coal Co. v. Pratt, 251 Fed. 655; Richardson v. Lacy, 27 La. Ann. 62.
No point is made in the motion to quash because Pierce was not an agent of the Brotherhood of Railroad Trainmen and this being true the endorsement of the sheriff is to be taken as true. If the Brotherhood of Railroad Trainmen can be sued and is for the purpose of this suit, a legal entity, then as Pierce its agent or secretary was found in Mississippi, Whitney could sue in Mississippi for any debt that might be due by the association to him. All of the argument as to the liability of a local lodge to Whitney for his salary or any other obligation that the grand lodge might hold is wholly beyond the mark for the reason that the record shows that Pierce was an agent of the Brotherhood of Railroad Trainmen, the garnishee herein.
Assuming that we are in error about the court taking judicial knowledge that this company or association has not appointed the insurance commissioner agent for process, we most respectfully submit that even if the court takes no judicial notice of the records of the insurance department that, before advantage could be taken of the statute, the record must affirmatively show that this defendant had appointed the commissioner as its agent for process.
Globe Rutgers Fire Insurance Co. v. Sayle, 107 Miss. 169, 65 So. 125; Continental Casualty Co. v. Gilmer, 146 Miss. 22, 111 So. 741.
Always assuming that such an association as the Brotherhood of Railroad Trainmen is suable, is the statutory method of obtaining service upon fraternal benefit societies pointed out by section 5246 of the Code of 1930, the exclusive method of serving such companies or associations even though the matter in regard to which the suit is brought is not insurance? We respectfully submit first that the method pointed out by section 5246 is not exclusive except in that class of cases concerning which the statute applies.
Morris Co. v. Scandinavian Insurance Company, 279 U.S. 405, 73 L.Ed. 762.
If the rule announced by the Supreme Court of the United States in the Union Mine Workers case is to be followed, then organizations such as this, will be given a corporate or quasi corporate status and it is the opinion of the writer of this brief that under such circumstances the rule announced by the Code as to service upon any agent thereof should apply.
Christian v. International Association of Machinists, 7 Fed. 2d 481.
Alexander, Alexander Satterfield, of Jackson, for appellee.
The relation between all parties to the controversy is one of identify, thus disqualifying the complainant from suing, and the defendant from being sued or garnished. Where the garnishee and the defendant are the same, the defendant cannot be summoned as garnishee.
28 C.J., page 51.
Where two parties are jointly liable neither of the parties can be considered a third person in the sense that he is liable as garnishee.
27 La. Ann. 29; Delta Insurance Co. v. Interstate Insurance Co., 113 Miss. 542, 74 So. 420.
The members of the Brotherhood sustain to each other the relation of partnership. This means that a member of the association or partnership is suing another member, and garnishing still a third. Assuming that the last named is a member of the Brotherhood, then one of the members is seeking to sue the partnership.
Karges Furniture Co. v. Amalgamated Woodworkers Union, 2 L.R.A. (N.S.) 788, 793.
The trial court has no jurisdiction over the defendant Brotherhood of Railroad Trainmen as garnishee or otherwise.
At common law, unincorporated, voluntary associations organized for business or other purposes were not considered or recognized as having any other character than that of a partnership in whatever it undertook, and could sue or be sued only in the name of its members and liability had to be enforced against each member. They were not recognized in court by their association name.
Florida Brewing Co. v. Sendoya, 73 Fla. 660, 74 So. 799; Hayman v. Weil, 53 Fla. 127, 44 So. 176.
Under the law such a society cannot contract and be contracted with and sue and be sued, but the officers of such society acting for and on behalf of the society are liable individually.
Johnson v. Howard, 141 So. 573, 576; Karges Furniture Co. v. Amalgamated Woodworkers' Union, 2 L.R.A. (N.S.) 793; United States, etc. v. Lloyds, 291 Fed. 889; Cahill v. Plumbers, etc., Local 93, 238 Ill. App. 123; 5 C.J. page 1365.
In the absence of legislation a voluntary association of this character is not regarded by law as a person or entity.
Brotherhood of Railroad Trainmen v. Cook, 21 S.W. 1049.
In view of the approval of this common law rule by our state in Johnson v. Howard, and in the absence of statutory authority abrogating the common law rule, it would seem unnecessary to make further citation.
The service of summons on J.E. Pierce is not valid to compel answer by the Brotherhood of Railroad Trainmen.
The status of the Brotherhood is to be adjudged with reference to article 14 of chapter 127 of the Code of 1930.
Christian v. International Association of Machinists, 7 Fed. 2d 481.
If section 5246 does not apply then there is no one on whom process may be served so as to bring the Brotherhood of Railroad Trainmen into court.
The only proceeding filed in response to complainant's bill was the motion to quash, which was filed by Pierce himself under authority of Gullett v. First Christian Church, 154 Miss. 516, as shown in our original brief. This, therefore, narrows the question to whether Pierce is a sufficient and proper agent for service for a defendant who could be indebted to the nonresident Whitney, and who could be sued by Whitney in this state. It is Pierce himself who has made the motion to quash, and if the Brotherhood is suable, then regardless of how process may be served, certainly such summons upon Pierce as Secretary of the independent local lodge is not one of the permissible methods.
This is an attachment in chancery under section 173, Code 1930, and the appeal is from a decree quashing the process and dismissing the bill.
The bill of complaint was filed against A.F. Whitney, a nonresident, for the purpose of recovering damages alleged to have been sustained by the appellant because of the publication by Whitney of an alleged libel against the appellant. The Brotherhood of Railroad Trainmen is alleged to be indebted to Whitney, and the prayer of the bill is that this alleged indebtedness be subjected to the payment of appellant's demand against Whitney.
The Brotherhood of Railroad Trainmen is an unincorporated labor union operating "throughout the entire United States" on the lodge system with a representative form of government. One of its subordinate lodges is located at Jackson, Mississippi, of which the appellant is a member. Summons for the Brotherhood of Railroad Trainmen was served on J.E. Pierce, secretary and treasurer of the brotherhood's subordinate lodge at Jackson, Mississippi. Pierce filed a motion to quash the process and dismiss the suit, the grounds of which are:
1. "The original bill of the complainant shows that both the defendants are one and the same person."
2. "The court has no jurisdiction over the defendant, Brotherhood of Railroad Trainmen, as a garnishee or otherwise."
3. "This court has no jurisdiction over this cause of action."
This motion was quashed and the bill dismissed. Pierce's right to file this motion is not challenged, in which connection see Gullett v. First Christian Church, 154 Miss. 516, 122 So. 732.
The grounds on which counsel for the appellee say that the motion was properly sustained are that: (1) The Brotherhood of Railroad Trainmen being an unincorporated association is not suable in its own name; (2) the appellant being a member of the brotherhood is, for the purposes of this suit, identical with it, and therefore, in effect, is attempting to sue himself; (3) the relations between Whitney and the brotherhood are such that both are liable for damages, if any, sustained by the appellee because of the publication of the alleged libel, and therefore the brotherhood could be sued only, if at all, as a principal defendant and not as garnishee; and (4) the appellant's claim for damages is barred by the statute of limitations.
The second, third, and fourth of these grounds do not here arise, and can be presented only in a proper pleading or objection by one or both of the defendants to the bill. The only question that Pierce can here raise is the suability vel non of the Brotherhood of Railroad Trainmen, of which he is a member.
In consonance with other courts, this court has repeatedly held that, at common law, an unincorporated association is not suable in its own name, consequently this association is not so suable, unless that rule has been changed by statutes, either expressly or by necessary implication.
In many, if not all, respects this brotherhood is an association of the kind and character of the United Mine Workers of America, which was held suable in its own name by the Supreme Court of the United States in United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762, for the reason that federal statutes which recognize the legal entity of such associations, grant them rights, and impose liabilities on them, impliedly authorize them to sue and be sued in their association names. All that was there said is applicable here, and in addition thereto, such right and liability are necessarily implied by sections 5231 to 5268, inclusive, Code 1930. This brotherhood is organized and operates for the mutual benefit of its members, one of its many activities being the issuance to its members of insurance policies of the character commonly known as "benefit certificates." Such associations are expressly recognized and authorized to operate in this state by these Code sections. They are permitted to, but are not required to, incorporate. Section 5246 provides for the service of process on them. Section 5250 is as follows: "No money or other benefit, charity or relief or aid to be paid, provided or rendered by any such society shall be liable to attachment, garnishment or other process, or be seized, taken, appropriated or applied by any legal or equitable process or operation of law to pay any debt or liability of a member or beneficiary, or any other person who may have a right thereunder, either before or after payment," thereby recognizing the suability of a mutual benefit association, except for the purposes therein outlined, as does also section 5262.
Various rights are given to, and liabilities imposed on, them by other sections, referred to above, for the protection and enforcement of which resort to the courts is necessary.
It may be true that the main purpose of these sections is to bring these associations issuing benefit certificates to its members under the supervision of the State Insurance Department, and to regulate the issuance and payment of these certificates. These sections unquestionably permit suits on benefit certificates issued by these associations. Clark v. Grand Lodge of Brotherhood of R.R. Trainmen, 328 Mo. 1084, 43 S.W.2d 404. But to stop there would not be sufficient protection for them, for the integrity of their benefit certificates can only be maintained when the courts are open to them for the preservation of many other of their rights and duties ancillary to the issuance of such certificates. Without such right they cannot function with any degree of safety. Their suability is essential, not only for the enforcement of their obligations, but to adequately protect their activities and existence.
It has been suggested that if the Brotherhood of Railroad Trainmen is suable, Pierce is not a proper person on whom to serve process for it. We are not here concerned with, and express no opinion on, that question. Pierce, because of his membership in, and the service of process on him for, the brotherhood, has the right to here have the suability vel non of the brotherhood judicially determined. Gullett v. First Christian Church, supra.
Reversed and remanded.