Simpson v. Grand International Brotherhood of Locomotive Engineers | Cases | Westlaw

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, and in the Simpson case at $11,000. In each the jury in response to interrogatories propounded by the court itemized its assessment of the damages, allowing Smith $1,531 as compensation for the loss of his insurance, $2,400 for other compensatory damages, and *582 $12,000 as punitive damages; and Simpson $4,500 as compensation for the loss of insurance, and $6,500 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. 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 assignments of error like writs were awarded to the Brotherhood.

Both actions seek damages for wrongful expulsion of the plaintiffs from the N. H. Smith Division No. 448 of the Brotherhood, on account of alleged violations of rules and regulations of the association, under coercion by Warren S. Stone, Grand Chief Engineer of the Brotherhood, the division having previously exonerated them on two occasions, once by a mere resolution and again by a formal vote in accordance with the association laws and regulations. Stone, being a nonresident and not served with process, was eliminated from the case by a dismissal. The other 33 individual defendants in each case, residents of the state, were made parties under the impression that they were liable in damages to the plaintiffs, by reason of their having voted for their expulsion from the division. As to 14 of them, Smith's action was dismissed on his own motion, leaving 19. The other action was prosecuted to final judgment as to all of the individual defendants. On the assumption of their identity with the Brotherhood, the Locomotive Engineers' Mutual Life & Accident Insurance Association and the Locomotive Engineers' Building Association, both foreign corporations, were also joined as defendants, but the actions were dismissed as to the former on its demurrers to the declarations, and as to the latter on its special pleas denying the jurisdiction of the court as to it.

Of course a corporation, like an individual, may do business under an assumed or false name and be sued by such name (Marmet Co. v. Archibald, 37 W. Va. 778, 17 S. E. 299); but in order to apply this doctrine incorporation by some name must be established. One who contracts with and receives money from certain persons acting as a corporation under a valid charter granted under a general law, but acts within both the charter and the general law, cannot avoid the obligation of the contract by denial of the corporate existence of the persons so contracted with. Bon Aqua Imp. Co. v. Standard Fire Ins. Co., 34 W. Va. 764, 12 S. E. 771. But this involves action in a corporate capacity or name. In the absence of evidence to the contrary, there is a presumption that persons representing themselves to be incorporated and contracting in a corporate name are what they represent themselves to be, and the situation of the parties and circumstances are often such as to estop them from denial of the fact. Singer Mfg. Co. v. Bennett, 28 W. Va. 16; Miller v. Newburg Orrel Coal Co., 31 W. Va. 836, 8 S. E. 600, 13 Am. St. Rep. 903. Lack of proof of the element of representation of corporate existence renders this principle unavailable to the plaintiffs. And, in the absence of proof to the contrary, very slight evidence of incorporation will sustain a finding that a party to a contract is a corporation, though not so described in the contract. Brotherhood of Locomotive Firemen v. Cramer, 60 Ill. App. 212; Independent Order of Mutual Ald v. Paine, 122 Ill. 625, 14 N. E. 42. Under some of these decisions, the adoption of a name by which the organization shall be known and the use of a seal, as disclosed by correspondence *583 found in the record, might be sufficient evidence to establish the corporate existence of the association, contrary to the finding in the trial court, in the absence of proof to the contrary, but direct and positive evidence that it is a voluntary and unincorporated association clearly overthrows a mere inference arising from these circumstances. There is no proof that the contracts of membership made between the plaintiffs and the association were understood or deemed by them to have been made in a corporate name. On the contrary, both admit in their testimony that the association is not incorporated. Not having been misled nor deceived as to the capacity in which the association made its contracts with them, they are not in a position to invoke the doctrine of estoppel.

The Grand International Brotherhood of Locomotive Engineers and the Locomotive Engineers' Mutual Life & Accident Association, the two corporations to which reference has been made, are not identical. The Grand International Brotherhood covers vastly more ground than the insurance association. Its purpose is the promotion of the general interests of railway locomotive engineers. The insurance association merely provides life and accident indemnities for such members of the Brotherhood as become certificate or policy holders therein, and the building association is a corporation owning and managing a Brotherhood building in the city of Cleveland, Ohio. Though all members of the Brotherhood having the necessary physical qualifications are expected or required to become members of the insurance association, and membership in the Brotherhood is a condition both precedent and subsequent to right of membership in the insurance association, all members of the Brotherhood are not members of that association. The estimated number of those who are not members of the latter, because they are physically disqualified from such membership, is estimated at about 4,000. The insurance association limits the scope of its insurance business, as any other insurance corporation might, to members of the Brotherhood in good standing, and makes its collections of assessments for payment of indemnities through the officers of the local division of the Brotherhood. Nevertheless, the insurance association is a distinct entity from the Brotherhood. It is a corporation capable of contracting, suing, and being sued and owning and holding property as fully and completely as an individual may own and hold it, and the association known as the Brotherhood has no such capacity and is not in any legal sense the owner of the assets of the insurance association, nor liable on its contracts of insurance. That an unincorporated society and an incorporated insurance association, composed of members of the former, and affiliated with it, are not identical has been expressly decided in Hajek v. Bohemian–Slavonian Benevolent Society, 66 Mo. App. 568. Relationship of the institutions is not determinative of the question of identity. Almost anything conceivable bears some sort of relation to everything else. The common features of animals do not make them identical. Nor does the close relation of parent and offspring in the same species. Obviously, these organizations *584 are not actually nor legally identical. Nor does the relation subsisting between them make the Brotherhood a fraternal benefit society within the meaning of the statute. The legislative intent in this respect is rendered clear by the express provision exempting the Junior Order of United American Mechanics, except the insurance branch of the order.

Whether or not the filing of the special pleas denying incorporation, or failure to object to the amendments until a term subsequent to the one at which they were made, might constitute a legal submission to the jurisdiction of the court, under circumstances different from those obtaining here, is an academic inquiry to which no time or labor need be devoted. An essential element of submission to jurisdiction is the existence of some persons capable of performing the act. The law courts take no cognizance of unincorporated associations, organizations, or societies, in the absence of a statute authorizing them to do so. A partnership cannot be sued by the firm name. The law courts do not recognize it as an entity, wherefore it is necessary, in order to obtain jurisdiction of it, to make the individuals composing the firm parties and serve process upon them. Courson v. Parker, 39 W. Va. 521, 20 S. E. 583; Brown v. Gorsuch & Sons, 50 W. Va. 514, 40 S. E. 376. If an association is not incorporated, and there is no statute authorizing procedure against it by its name, the action must be brought against the individuals composing it. 29 Cyc. 218; Bacon, Life & Accident Ins. § 612. It can neither waive errors nor enter an appearance as an entity. If the theory of a technical submission can be sustained, it would avail nothing, for there can be no judgment against a voluntary unincorporated society by name. The judgment must in all cases be against the individuals composing it, or some of them, unless a statute provides otherwise. O'Connel v. Lamb, 63 Ill. App. 652; Hajek v. Bohemian–Slavonian Benevolent Society, 66 Mo. App. 568; Lumber Co. v. Oliver, 65 Mo. App. 435; Moore v. Stemmons, 119 Mo. App. 162, 95 S. W. 313; Crawley v. American Society of Equity, 153 Wis. 13, 139 N. W. 734; Bacon's Life & Accident Ins. § 612.

Lack of jurisdiction of the Grand International Brotherhood of Locomotive Engineers makes reversal of the judgment against it inevitable, and also renders it unnecessary, as well as improper, to pass upon any of the numerous rulings made in the course of the trials, in so far as they might, if it were a party to the cases, affect its interests. Without having brought the association within its jurisdiction, the trial court could not properly decide anything against it, nor can this court do so. But, since the court acquired jurisdiction of the individual defendants, it is necessary to determine whether it properly directed verdicts in their favor.

With a single exception, they are all members of the N. H. Smith Division No. 448. One of them is a member of another division. Through their respective divisions, they are no doubt members of the grand international organization. Membership in the general organization seems to be attainable only by means of membership in the local divisions. If, by virtue of its jurisdiction over them, the court had jurisdiction pro tanto of the Brotherhood, the measure of relief to which the plaintiffs are entitled, if any, is a judgment against them in their individual capacities. Crawley v. American Society of Equity, 153 Wis. 13, 139 N. W. 734. This is true not only because the individual defendants, if jointly liable with others and not otherwise, did not plead the nonjoinder of other necessary parties, but also because the actions are for damages for wrongs, not breaches of contract, and the plaintiffs have their election to sue all of the wrongdoers or only one or more of them. Cunningham v. Sayre, 21 W. Va. 440; Riverside Cotton Mills v. Lanier, 102 Va. 148, 45 S. E. 875.

Both declarations are framed upon the theory of lack of right, power and authority in the Grand Chief Engineer to make certain rulings in obedience to which the division expelled the plaintiffs; lack of right in the division to adopt the procedure ordered by the Grand Chief Engineer, resulting in their expulsion; malicious and wrongful action on the part of individual members of the division, in voting for expulsion on the trial which resulted in such action; and *585 wrongful, malicious, and concerted action on the part of such members and the Grand Chief Engineer, amounting in legal effect to a conspiracy for the accomplishment of illegal and injurious expulsion of the plaintiffs.

The alleged misconduct of the plaintiffs for which they were expelled related to an alteration or disturbance of working conditions or service on a certain portion of the line of the Norfolk & Western Railway, within the jurisdiction of the general adjustment committee, to which the members of the N. H. Smith Division No. 448 were subject. At that point, the equipment of the railroad company was pooled so as to afford the engineers and firemen an equitable and just apportionment of employment. The motive power consisted of steam locomotives and electric motors. Under the pooling arrangement, all of the engineers handled indiscriminately both classes of motors, taking their turns regularly in the service. This arrangement was changed by the road foreman of engines and the electric motors given permanently to certain men, two of them to Smith and Simpson. This action resulted in serious disturbance of some of the other employés. It necessitated a general rearrangement, occasioning loss of employment or wages to some of them. Twelve members of the N. H. Smith Division No. 448 preferred written charges against the plaintiffs, accusing them of having procured this alteration, “the cutting of the Elk Horn pool,” in violation of sections 20 and 35 of the standing rules of the organization and article 11(a) of what is known as the Chicago Joint Working Agreement. These charges were referred to an investigating committee composed of three members, who sustained them and gave the accused members notice to appear at a division meeting to be held May 21, 1916, for trial. At that meeting, Smith and Simpson appeared and denied the truth of the charges. The chairman of the investigating committee stated that J. S. Mastin, the road foreman of engines, by whom the alteration of crews was made, had told him the Elk Horn crews would not have been cut off had not Smith and Simpson come to his office. Thereupon the accused presented a statement in writing from Mastin, saying they were not responsible for the action complained of, and that the trouble was in his office and would have been corrected, when he came in, if no one had said anything about it. On this statement, the division passed a resolution exonerating both of the men. A brief but comprehensive and dispassionate report of the action of the division was immediately made by the secretary, to S. H. Huff, chairman of the general adjustment committee of the Brotherhood of Locomotive Engineers, on the Norfolk & Western Railway, who transmitted it to the Grand Chief Engineer. This official, on June 9, 1916, wrote a letter to the secretary of the division requesting a copy of the charges, the evidence, and the notice to appear for trial. Huff no doubt was responsible in some degree for the preferment of the charges and this action on the part of the Grand Chief Engineer. He had been called to Bluefield, by a telegram, in connection with the Elk Horn trouble, before the charges were preferred, and he later had interviews with Stone, the Grand Chief Engineer, at New York and Washington, concerning the Smith and Simpson cases, before they were finally disposed of. After having received these papers, Stone disapproved the method of procedure adopted by the division, as well as the result. In such cases, the statutes of the organization require the decision to be made by ballot. He therefore ordered the cases to be reopened and disposed of in accordance with the laws of the organization. In obedience to this direction, the accused parties were notified to appear again for trial on the same charges on July 16, 1916. On the occasion of this second trial, Mastin was present, and the record of the proceedings represents him as having admitted that Simpson and Smith caused the cutting of the crews. Marra, chairman of the investigation committee, is represented as having made a contradictory statement assented to by Mastin. The record further states that Mastin, in response to a question by Simpson, denied that the accused had requested the cutting of the crews, and said that they had come to his office at the request of the assistant road foreman, E. M. Bill. The evidence having been thus adduced, ballots were taken which resulted in acquittals, 8 black balls, and 15 white ones having been cast in Simpson's case, and 12 black ones and 20 white ones in Smith's. In his report of this trial, to the Grand Chief Engineer, dated July 21, 1916, Wade Miller, Chief Engineer of Division No. 448, did not stop with the statement of the result, but commented rather extensively upon the procedure and the merits of the controversy. He said Mastin had not denied having admitted to the committees that Smith and Simpson had caused the cutting of the crews, but had endeavored, in his oral statement to the division to cover it up and leave the impression that the disturbance of the crews was due to a mistake in his office, made by Bill, the assistant road foreman. He also said Ballengee, a member of the division, had overpersuaded and misled the members in their voting, by a speech he had delivered on the occasion. He concluded by saying the officers of the division had done all in their power to make the laws of the organization effective in the cases, but had found it impossible to do so. In his reply, dated July 24, 1916, the Grand Chief Engineer expressed *586 confidence in the integrity of the officers of Division No. 448, and then proceeded as follows:

On August 6, 1916, a resolution to rescind the action of July 16th was offered and consideration thereof was postponed until the next meeting, held August 13, 1916, and at that meeting it was unanimously adopted. On August 14, 1916, the investigating committee again signed a report sustaining the charges originally made on April 22, 1916, and notified the accused to appear for trial at a meeting to be held August 20, 1916. Appearing on the last–named date, in response to the notice, Simpson and Smith objected to trial, on the ground of their having filed an appeal to the Grand Chief Engineer from the action of the division at the last preceding meeting. This appeal is in the form of a letter dated August 18, 1916, and addressed to the Grand Chief Engineer. It denied the validity of the rescission of the results of the former trials and the right of the division to subject the accused parties to another trial. In view of this situation, the division postponed action and directed the secretary to write the Grand Chief Engineer for advice and instruction in the premises. By a letter dated August 23, 1916, that officer overruled the contention of the accused, and by another dated August 26, 1916, advised the division through its secretary that it had undoubted authority to rescind or set aside the results of the former trials and reopen the cases and proceed with the trial thereof. That trial took place on September 17, 1916, and resulted in the expulsion of Simpson by a vote of 21 to 10, and Smith by a vote of 18 to 12. The evidence, as recorded, was similar to that used on the two former occasions, but more witnesses testified. Mastin is reported as having said the crews might not have been cut so soon if Simpson and Smith had not been down to the office. Huff was present for the first time, and made an extensive statement, but, on his own motion, was excused from voting. On a joint appeal from these actions, the Grand Chief Engineer declined to reopen the cases, but advised the appellants of their right to apappeal from his decision to the next convention, or Grand International Division. Of this last right of appeal they did not endeavor to avail themselves.

Section 35 of the Standing Rules, under which the charges were preferred, reads as follows:

Section 20 of said rules affirms the right of a committee of the Brotherhood of Locomotive Engineers to handle all questions and matters pertaining to engineers, except such of them as are firemen, working as engineers, they being under the jurisdiction of the committee of the Brotherhood of Locomotive Firemen and Enginemen. The Elk Horn pool, the dissolution of which by the action of Mastin, alleged to have been induced by the plaintiffs, resulted in the proceedings complained of, affected both classes of engineers, in consequence of which there was a general reduction in rank and position among the engineers and firemen as well as loss of time. In view of this result, the plaintiffs were charged with having violated the Chicago Joint Working Agreement, entered into by the two organizations, the Locomotive Engineers and Locomotive Firemen. This agreement was operative among the members of the two organizations on the Norfolk & Western Railway, but had not been assented to by the railway company. It is a rather lengthy document, and some of its provisions bear directly upon the relations subsisting between the engineers and firemen in the Elk Horn pool.

Simpson held three certificates or policies of insurance, calling for $4,500 and Smith one, calling for $1,500. Under the rules and regulations of the insurance company by which the certificates had been issued, they were expressly made valid for a period of one year after the expulsion of the members to whom issued but no longer. The president of the insurance association, testifying in the case, said the insurance certificates of the plaintiffs would have been maintained by him, on payment of the assessments called for by them, if appeals had been taken to the Grand International Division, notwithstanding the lack of express authority to do so. The import of his testimony is that formerly the convention or Grand International Division met annually, and that the provision for continuance of insurance certificates for one year was designed to keep them in force, after expulsion, pending the prosecution of appeals; and that, by an amendment of the constitution, making the *587 convention triennial instead of annual, the right of maintenance of insurance pending an appeal had been apparently interfered with by oversight. Hence he says he would have recognized the certificates and endeavored to keep them in force if the expelled members, the plaintiffs here, had taken appeals to the convention. Their only reply to this is lack of duty on their part to take appeals at a period earlier than 30 days before the meeting of the Grand International Division. They tendered assessments for a while, without appealing, but they were not accepted.

Practically all of the positions taken in argument, for the plaintiffs below, are rendered untenable by this general principle. Whether Huff's position as chairman of the General Adjustment Committee gave him such official interest in the proceedings pending in the division as justified his complaint to the Grand Chief Engineer, against the result of its action, and whether that official was bound to refrain from procedure in the premises, because the information tending in his opinion, to establish the evasion of duty on the part of the division, was communicated by Huff, whose alleged animosity toward Simpson may have been known or suspected, are questions of such character as bring them within the provinces of the officers and tribunals of the association for determination. Huff was subordinate to Stone in rank and authority. The charges made against the plaintiffs related to a matter over which he may have had some authority. Under his diagnosis of the situation, Simpson and Smith had a grievance, deprivation of their right, as senior engineers, to run the electric motors, that should have come up regularly and possibly have passed through the hands of the committee or the local committee whose determinations might directly or indirectly have required action on his part reviewable by Stone. As chairman of the general adjustment committee, he was the highest official of the order on the Norfolk & Western Railway, and, whether directly chargeable with any duty respecting the cutting of the Elk Horn crews or not, the propriety of the dissolution of the Elk Horn pool was manifestly a matter concerning which he might be called upon to act officially, by way of review or otherwise. Whether he acted strictly within his duty or not, nothing in the rules or regulations forbade his giving his superior information which both deemed to be for the good of the organization, nor acceptance thereof by the latter. Whether their conduct in this respect was proper or not, the written laws of the order leave undetermined, and it was not so unreasonable or unjust as to place it beyond the scope of a reasonable interpretation of the rules and regulations.

Stone's exercise of his power of suspension and appellate jurisdiction conjointly and simultaneously, so as to compel the expulsion of the accused members, or loss of the charter, and thus restrain the liberty of members in respect of their action in the trials is harsh and drastic on its face and decidedly variant from the course of ordinary judicial procedure. But it must be remembered that the association was not formed in absolute accord with the scheme or plan of the state government. The mere reversal of a finding of not guilty by a division would not effect an expulsion of a guilty member. He can be eliminated only by the action of the division itself, and the chief's power over the division is his control of its charter. In what other way could he compel an obdurate division to expel members plainly and indisputably guilty of the most reprehensible conduct? Must the division be permitted, if it so wills, to let all of its rules and regulations become dead letter law, and thus make itself an impediment to the maintenance of an efficient organization, an obstruction to the achievement of the social object, and a disgrace to the association? It cannot be unreasonable to say the two powers vested in the official head of the organization may be conjointly exercised in plain cases. If they can be so used in such cases, the right to determine whether they may be in doubtful cases necessarily follows, and belongs to the association tribunals, not the courts.

Right to expel on the same charges on which the accused has previously been acquitted, under the mandate of a superior officer or tribunal exercising appellate jurisdiction, depends upon the same principle. It is a question of private social law, either determined by the express terms of the constating instruments, by–laws, rules and regulation, or by fair and reasonable interpretation of provisions thereof, relating to the subject. Neither the constitution, statutes, nor rules of the association forbid the placing of an accused member in jeopardy a second time. If, in the absence of any provision on the subject, there is a presumption of intent to adopt this provision of organic state law, it is clearly overthrown by the practically unlimited powers vested in the Grand International Division to whom the Grand Chief Engineer makes his triennial reports, and whose representative and spokesman he is, when that body is not in session. In the absence of an express provision, guaranteeing immunity from second trial for the same offense, the right of interpretation and construction exists, and that right is vested in the grand Chief Engineer. When his decision is reported to the G. I. D., it is subject to the action of that body, which has “exclusive jurisdiction over all subjects pertaining to the Brotherhood,” whose “enactments and decisions upon all questions are the supreme law of the Brotherhood,” to which “all divisions and members of the order shall render true obedience.” Con. G. I. B. of L. E. § 3. The courts cannot interpose in advance of the decision of a body having such plenary powers, and hold that its representative has no power to do what it clearly has power to ratify or order. The powers thus vested in it expressly exclude any presumption of intent to adopt the limitations and rules of the civil laws, respecting either procedure or substantive rights in the order. They do not override legal limitations imposed upon the powers of such organizations, of course, but nothing in the civil law inhibits a second trial of a member of a voluntary association for the same offense against his will. Ordinarily, the courts deny the existence of any presumption of intent to bind such associations to the modes of procedure prescribed by public law. Gray v. Christian Society, 137 Mass. 329, 50 Am. Rep. 310; Spilman v. Supreme Council of the Home Circle, 157 Mass. 128, 31 N. E. 776; People v. St. George Soc., 28 Mich. 261; Kelly v. Grand Circle, 40 Wash. 691, 82 Pac. 1007; Marcus v. National Council, 123 Minn. 145, 143 N. W. 265; Kulberg v. National Council, 124 Minn. 437, 145 N. W. 120; Pepin v. Société St. Jean Baptiste, 24 R. I. 550, 54 Atl. 47, 60 L. R. A. 626; Murray v. Supreme Hive, 112 Tenn. 664, 80 S. W. 827. An apparently contrary holding is found in Commonwealth v. Guardians of the Poor, 6 Serg. & R. (Pa.) 469, but that was a public corporation governed, as to its organization and rights of members, by public law, not by contract. Moreover, there seems to have been no mode of correction by appeal. The corporation was not a subordinate organization of a larger body having supervisory power over it, and the member expelled had had no notice of the second trial.

The propositions on which these observations stand are obvious corollaries of others to which the courts have yielded practically unanimous assent. The expulsion of a member of a voluntary association, whether incorporated or not, after notice, an opportunity to be heard and a trial fairly conducted agreeably to the laws of the association, is conclusive upon the civil courts. State ex rel. Smith v. County Court, 78 W. Va. 259, 88 S. E. 793; Boggess v. Buxton, 67 W. Va. 679, 69 S. E. 367, 21 Ann. Cas. 289; Committee v. County Court, 68 W. Va. 113, 69 S. E. 522; Wilcox v. Supreme Council, 210 N. Y. 370, 104 N. E. 624, 52 L. R. A. (N. S.) 806, note citing numerous cases. “Where the society makes provision for the settlement of controversies between it and its members, or between its members, concerning its government, its dissolution, or its property, courts will refuse to take cognizance of such controversies until those who have grievances, have in the first instance, resorted to and exhausted the remedies provided by the society. * * * The mere provision of such a means abridges the right to appeal to the courts until the prescribed means have been pursued. This rule prevails in matters of discipline, in the expulsion and suspension of members, and arises from the fact that in such cases the controversy springs from the contract of membership, and is a matter of internal regulation.” Niblack, Ben. Soc. & Acc. Ins. § 111; Smith v. County Court, cited; Grand Lodge, K. of P. v. People, 60 Ill. App. 550; Oliver v. Hopkins, 144 Mass. 175, 10 N. E. 776; Zeliff v. Grand Lodge, K. of P., 53 N. J. Law, 536, 22 Atl. 63; Whitty v. McCarthy, 20 R. I. 792, 36 Atl. 129.

Whether malice on the part of the members voting for expulsion, under the circumstances stated, would constitute a good cause of action, need not be determined, for there is no evidence of its existence, sufficient to sustain a verdict founded upon it. The trial court correctly so ruled by his peremptory *590 instruction to find for the individual defendants. On the last trials, the vote was taken under the mandate of a superior officer, claiming right and power under the laws of the organization, to annul the acquittals on the ground that they were against the clear weight of evidence, and required the division to expel the accused members. This introduced an entirely new element into the cases. It became necessary for each member to determine for himself whether Stone possessed the authority he claimed and whether the law of the association required submission to his orders. The change of attitude of members was on its face a submission to an assertion of superior authority, wherefore it raises no inference of malice or misconduct. Huff and Simpson were not friends. On two previous occasions they had had altercations, but there is nothing in the evidence tending to prove that Huff was actuated by any ill will in what he did respecting the charges. He had not attended the first two trials, and on the last did no more than explain the reason for his having brought the others to the attention of the Grand Chief Engineer. At his own request, he was excused from voting, and there is no proof that he otherwise exercised any personal influence he may have had over other members.

Lack of jurisdiction of the Grand International Brotherhood requires reversal of the judgment, and setting aside of the verdict against it, but the judgment in favor of the individual defendants must be affirmed. the trial court's instruction to the jury to find for them having been properly given. As nothing can be decided against the association without jurisdiction, and the judgment in favor of the other defendants is free from error and completely discharges them, there is no occasion to deal with the numerous assignments of error, based upon the other rulings of the court during the progress of the trial. As to the Grand International Brotherhood, the cases wil be remanded, with leave to the plaintiffs to acquire jurisdiction of its members by proper process and proceed with a new trial, if they shall see fit so to do.