Oster v. Brotherhood of Locomotive Firemen & Enginemen , 271 Pa. 419 ( 1921 )

Opinion by

Mr. Justice Schaffer,

Plaintiff brought an action of assumpsit against “The Brotherhood of Locomotive Firemen and Enginemen, W. J. Carter, President, A. H. Hawley, General Secretary and Treasurer, or whoever may represent the defendant,” and filed a statement of claim, in which it is averred “the defendant is a fraternal and beneficial association organized for the benefit of the members and their wives, widows, children or families,” that plaintiff is the widow of Andrew A. Oster, who was a member of the brotherhood, and that she is entitled to the insurance or benefits upon his life. Claimant attached to her statement a copy of the beneficiary certificate, issued by the Brotherhood, which showed that it was payable not to her but to Frances Oster, named therein as wife.

An affidavit of defense in the nature of a demurrer was filed to the statement, in accordance with the Practice Act of May 14,1915, P. L. 483, in which it was set forth, that the action cannot be maintained, as the defendant is sued as an unincorporated beneficial association in an action of assumpsit, and that plaintiff’s remedy is not at law but by bill in equity. The court sustained the demurrer, entered judgment for defendant and plaintiff has appealed.

Affirming the Superior Court in Maisch v. Order of Americus, 223 Pa. 199, we said “There is no such entity known to the law as an unincorporated association” and held that an action of assumpsit would not lie against such a body. We took occasion to point out, however, that a plain remedy remains in equity, where suit may be brought against some of the members as representing themselves and all others who have the same interest, and in Wolfe v. Limestone Council, 233 Pa. 357, we reiterated these principles, and called attention to the fact that in the equity proceeding, after decree, the chancellor can be moved to compel the defendants to see that the treasury of the association pays the claim. Plaintiff has pursued the wrong remedy; if she wishes to test her claim, she should go into equity.

The learned court below properly sustained the demurrer, and its judgment is affirmed, without prejudice.