172 Ga. 346 | Ga. | 1931
Certain persons alleging themselves to be members of Bethlehem Chapter, a subordinate of the Grand Chapter of the Order of Eastern Star, brought this action against the Grand Chapter and persons alleged to hold designated official positions therein. It is alleged that the order is a voluntary association for beneficent and beneficial purposes, and of the nature of a copartnership. It is not a corporation. The petitioners, having exhausted all the means provided by the charter and by-laws of the organization; invoke the aid of a court of equity for redress of their alleged wrongs. They allege, that, in violation of the principles and governing law of the order, the charter of Bethlehem Lodge has been withdrawn, the .membership of petitioners in the order has been destroyed, and the property of Bethlehem Chapter, in which each member is alleged to have an individual interest, has been taken away from them; this property consisting of $169 on deposit in bank in the name of Bethlehem Lodge, and paraphernalia, jewels, and equipment of the value of $500. The petitioners ask also for damages of $30,000, to be equally prorated, $1,000 to be allotted to each of the petitioners. A full statement of the contents of the original petition, the 28 grounds of the demurrer directed against
Judge Meldrim rendered the following decision: "Certain ladies, averring that they were or are members of the Bethlehem Chapter of the Order of the Eastern Star, have brought their equitable petition against the Grand Chapter of the Eastern Star and certain members of the local or Bethlehem Chapter. The defendants have demurred. The petitioners have amended again and again until the averments in the petition and the several amendments are like the leaves of Vallambrosa. I am not at all sure that I have reached a right conclusion. The learned counsel for defendants this day concedes that there are left in the case two questions: 1. Can the petitioners pursue the two remedies, one restoration to membership; the other recovery of damages for the alleged torts ? The petitioners can not have their cake and eat it too; but I see no reason why they can not seek alternative remedies. If the petitioners can not be reinstated in membership and the status quo restored, then I see no reason why they may not recover damages for the wrongs alleged to have been sustained. The second question is this: Do the petition and amendments join contract and tort? I do not think so. The action in my opinion is in tort. The demurrers are overruled.” The defendants thereupon excepted.
The judge was undoubtedly correct in overruling the general demurrer. The plaintiffs have a right of action. If as members of the O. E. S., and as members of the Bethlehem Chapter of that organization, they have the right or are authorized to participate in the proceedings of the Grand Lodge of that order (whether in person or by representatives), and have exhausted all of the remedies provided by the order itself, or their petitions for redress have been received with stony silence, if not indeed with contempt, then, and not till then, will a court of equity assume jurisdiction of the matter and award the petitioners whatever may be their civil rights. The petition contains sufficient averments upon this score. As will appear from the opinion rendered by the judge, and as we gather from the briefs of counsel for plaintiffs in error, a very important question in this case is whether, in such an action as this, ydiere the main object of the petitioners is to obtain reinstaterqenj;
Much authority could be cited as to whether there can be a recovery of damages for wounded feelings generally. It is everywhere admitted that recovery may be had for mental pain and suffering in actions for libel and slander, and for the seduction of one’s wife or daughter. However, in Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 S. E. 901, 17 L. R. A. 430, 30 Am. St. R. 183), in the opinion delivered by Mr. Justice Lumpkin and concurred in by the court including Chief Justice Bleckley, it was held that a person is not entitled to recover damages on account of mere mental pain and suffering. In the opinion it was said: “The law protects the person and the purse. The person includes the reputation. Johnson v. Bradstreet Co., 87 Ga. 79. The body, reputation, and property of the citizen are not to be invaded without responsibility in damages to the sufferer. But outside these protected spheres, the law does not yet attempt to guard the peace
An unincorporated association can not generally, or in the absence of a statute, be sued in its company name, but all the members must be made parties, since the association has no legal entity distinct from that of its members. 5 C. J. 639, § 118. Wilkins v.
We are of the opinion that the ground of demurrer which attacked so much of the petition as asks for damages against the Grand Chapter O. E. S. should have been sustained. The petitioners can not, in the same action, ask for reinstatement and dam
We find no error in the other assignments presented by the bill of exceptions, and a discussion of the principles of law involved therein would be a matter of supererogation. It is ordered that the judgment of the superior court be amended by striking from the petition all allegations and prayers referring to the petitioners’ claim for damages; and that in all other respects the judgment upon the interlocutory hearing be affirmed.
Judgment affirmed,, with direction.