Woodard v. Kilburn , 45 N.M. 512 ( 1941 )

I disagree with the decision of the majority in this case. Paragraph 2 of the complaint alleges: "That defendant, whose place of residence and post office address is Clayton, Union County, New Mexico, is a sole trader doing business under the style and trade name of Kilburn Burial Association."

This is an allegation of an ultimate fact and tendered the issue whether F.P. Kilburn, the defendant, was operating as a sole trader "doing business under the style and trade name of Kilburn Burial Association". While it is true, as the prevailing opinion suggests, that the recitations and provisions of the certificate of membership and of the by-laws and regulations, attached as exhibits, reflect association status rather than that of an individual trader, nevertheless, I do not think they suggest the decisive fact so strongly, as in the case of the exhibits involved in the New Mexico decisions cited by the majority, that we are compelled to deny plaintiff the right to tender proof of the ultimate fact pleaded that defendant is a sole trader doing business under the trade name alleged, viz., Kilburn Burial Association.

The majority view tries the plaintiff's case prematurely. The effect of the quoted allegation is to say that notwithstanding the pretense of association status furnished by the camouflaged by-laws, she (the plaintiff), if permitted to do so, will prove the whole enterprise to be an alter ego of the defendant himself. The majority opinion denies her this right and declares as a matter of law, without hearing her proof or permitting the trial court to do so, that pretense is reality for the purpose of ruling on the demurrer.

Now, as to just how the plaintiff would furnish this proof, the court is not properly concerned at this time. The only pertinent inquiry this court should now address to itself is whether under any conceivable state of facts the plaintiff could demonstrate that F.P. Kilburn and Kilburn Burial Association are one and the same. Whether this might be shown through admissions of the defendant himself, by proof that he organized the so-called association and exercises complete dominion and control over it and its funds, or by evidence of a practical construction of the contracts between the defendant and the so-called members, thereby establishing them as several between the defendant and each so-called member, rather than mutual contracts between the members themselves, we cannot know. Nor, as already stated, is it our proper concern at this time to inquire. Cf. Goodsell v. Western Union Tel. Co., 58 N.Y.Super.Ct. 26, 9 N.Y.S. 425, affirmed, 130 N.Y. 430, 29 N.E. 969. It is both relevant and competent for a plaintiff, having alleged the use of a fictitious name by a defendant, to introduce evidence in proof of the fact alleged. Goodsell v. Western Union Tel. Co., supra; Ingram v. Watson, 211 Ala. 410, 100 So. 557; Bartlett v. Tucker,104 Mass. 336, 6 Am. Rep. 240; Bishop Press Co. v. Lowe, 201 Mo. App. 68,209 S.W. 962.

If permitted to proceed with her proof the plaintiff might aid it by calling attention to the significant fact that this is an association without an executive head or administrative board. The only officer of the so-called association mentioned is that of "Secretary-Treasurer" and the secretary-treasurer is the defendant. There is no president. There is no board. Whether the defendant named himself to the office of secretary-treasurer or was duly elected at a meeting of the association, or whether in truth there ever was a meeting of the so-called association at which the purported by-laws were adopted, all would be matters of proof tending to establish the issue of sole trader pleaded, if only plaintiff were allowed to offer proof. She might even be able to show that the by-laws were prepared by defendant and handed out to the so-called members ready-made.

But why go on? Enough has been said, it seems to me, to demonstrate abundantly that the trial court correctly held the plaintiff was entitled to prove what she had alleged. The demurrer was properly overruled and defendant having stood on the ruling, the judgment should be affirmed.

I dissent.

MABRY, J., concurs.