Kempton Lodge, No. 482 v. Mozingo, 180 Ind. 566

Kempton Lodge, No. 482 v. Mozingo

180 Ind. 566 | Ind. | 1913

Spencer, J.

This is an action commenced in the Tipton Circuit Court by Francis M. Mozingo to recover sick benefits alleged to be due him from appellant. Before the judgment herein was rendered said Francis M. Mozingo departed this life, and appellee, the administrator of said decedent’s estate, was substituted as party plaintiff.

The original complaint in this cause was filed on August 30, 1910. In answer thereto appellant tendered a plea in abatement, to which a demurrer was filed and sustained. Prior to the ruling on such demurrer, however, appellee’s decedent'filed an amended complaint in two paragraphs but appellant made no effort to refile its plea in abatement. Appellee now contends that the error, if any, in sustaining the demurrer thereto was harmless.

This position is well taken. An amended complaint, which is complete in itself, and which does not refer to the original complaint, entirely supersedes it, and becomes the sole statement of the plaintiff’s cause of action. Travelers’ Protective Assn. v. Smith ( ), ... Ind. ..., *569101 N. E. 817; Weaver v. Apple (1897), 147 Ind. 304, 46 N. E. 642; Hedrick v. Whitehorn (1896), 145 Ind. 642, 43 N. E. 942; Holland v. Hummell (1909), 43 Ind. App. 358, 87 N. E. 662. Appellant’s plea in abatement was addressed to the oi’iginal complaint in this cause. The original complaint later was superseded by an amended complaint, which stood independent of all prior proceedings, and if appellant sought to abate the cause of action stated in such amended pleading, it should have addressed a proper plea thereto.

The first paragraph of the amended complaint alleges, in substance, that appellant is a secret benevolent and beneficial order, organized under the laws of Indiaxxa; that it is a subordinate order, acting under a charter granted by the Grand Lodge of Independent Order of Odd Fellows of the State of Indiana; that pursuant to the authority granted in such charter and in accordance with certain specified statutes of said Grand Lodge, appellant enacted a by-law, which was in full force at the times herein mentioned, prescribing that any member who had been a contributing member in full fellowship for sis months when incapacitated by illness should receive certain stated sums as sick benefits; that on January 27, 1907, appellee’s decedent sustained a stroke of paralysis axxd subsequent to that time was sick and unable to earn a livelihood; that he was at all times during said illness fully entitled to receive sick benefits in accordance with appellant’s said by-law and gave due notice of his sickness to appellant; that he prepared and presented to appellant lodge a claim for the benefits due him, which claim was rejected, and he then “appealed from the decision of said Jodge, and in pursuance to the laws of the order regarding such appeals, he selected a Past Grand of a neighbor lodge, as one of a Committee of Past Grands to act as a trial committee, in the trial of the merits of his said claim; that in pursuance to said laws, the defendant (appellant) also appointed a Past Grand of a neighbor lodge to serve on said committee; that under said laws of said defendant *570order, the two Past Grands thus selected should choose a third Past Grand, all of whom should constitute a committee to try said claim; that the Past Grand chosen by the plain-' tiff has been ready and willing at all times to select a third Past Grand, but the defendant wrongfully instructed the Past Grand so selected by it not to act or proceed to discharge his duties until directed to do so by it, under the seal of its lodge, and said Past Grand has elected to conform to the wishes of said defendant, and thus refuses to discharge the duties encumbent upon him as a member of such committee, and refuses to select a third Past Grand; that therefore plaintiff is and has been unable to secure a trial of his claim, although the same is just and meritorious.” Then follows the prayer for relief.

A demurrer to this paragraph of complaint was overruled and such ruling is now assigned as error. Appellant relies on the rule that a beneficial or fraternal association may, by its by-laws, provide tribunals within the order itself for the settlement of matters in controversy between the association and its members, and require, as a condition precedent to a suit at law, that the aggrieved member either shall exhaust his remedies so provided or show a valid reason for his failure so to do. Supreme Council, etc. v. Grove (1911), 176 Ind. 356, 363, 96 N. E. 159, and cases cited; Bauer v. Samson Lodge, etc. (1885), 102 Ind. 262, 1 N. E. 571. This rule is applicable here but, although organizations such as appellant may prescribe reasonable regulations as to procedure in enforcing claims, they may not, either directly or indirectly, wholly take away from their members the right to invoke the aid of the courts. Supreme Council, etc. v. Forsinger (1890), 125 Ind. 52, 59, 25 N. E. 129, 9 L. R. A. 501, 21 Am. St. 196; Bauer v. Samson Lodge, etc., supra, 268; Voluntary Relief Dept., etc. v. Spencer (1897), 17 Ind. App. 123, 127, 46 N. E. 477.

*571 4.

*570The question before us, then, is the sufficiency of the first paragraph of amended complaint to show either a eompli*571anee by appellee’s decedent with the procedure established by appellant to govern controversies of this character or a valid excuse for failing to so comply. The complaint charges that after his claim had been rejected by appellant, appellee’s decedent “appealed from the decision of said Lodge, and in pursuance to the laws of the order regarding such appeals”, selected one member of the committee which should try his claim; that this committee failed to meet for the reason that appellant instructed its member thereof “not to act or proceed to discharge his duties until directed to do so by it”; that therefore “plaintiff is and has been unable to secure a trial of his said claim, although the same is just and meritorious”. Fairly construed, the complaint, on its face, shows a good faith effort on the part of the plaintiff to comply with that procedure which, he alleges, is prescribed by “the laws of the order regarding such appeals.” Courts cannot take judicial notice of the statutes and by-laws promulgated by private organizations for the government of their own affairs and if, in faet, the plaintiff herein failed to. take the proper steps under the laws of the order to perfect his appeal from the decision of appellant lodge, the latter should have set up such failure by way of a plea in abatement addressed to the amended complaint. As the case now comes to this court the facts averred in the amended pleading are, by the demurrer, admitted to be true and arc sufficient to make a prima facie showing that appellee’s decedent was prevented from complying further with appellant’s laws and rules by the act of that body itself. He was then entitled to resort to the courts to enforce his claim, and the demurrer was properly overruled. Supreme Council, etc. v. Forsinger, supra, 58; Supreme Sitting Order, etc. v. Stein (1889), 120 Ind. 270, 279, 22 N. E. 136.

*572 7.

*571Our conclusions above stated serve, also, to dispose of each, save one, of the objections urged against the second paragraph of complaint. Appellant contends that this para*572graph, is insufficient for the further reason that it does not charge that any demand was ever made on appellant for the sick benefits alleged to be due. The complaint avers that, under the provisions of appellant’s laws, "every member who shall have attained the three degrees and shall have been for not less than six months a contributing member in full fellowship, or shall have been admitted on an unexpired card and paid six months’ dues in advance at the time of his admission, being in good standing, and having given due notice of such sickness, shall he entitled, should he become sick or injured and unable to earn a livelihood, to a sum, ’ ’ etc. It is then alleged, in substance, that appellee’s decedent was regularly entitled to the benefits provided; that he gave due notice of his sickness to appellant; and that he received from appellant a partial satisfaction of his claim. It thus appears that he fully complied with the terms of his contract as set out in the complaint, and if, under other provisions of appellant’s laws, further notice or demand was necessary or if sufficient reason existed for the nonpayment of the balance alleged to be due, the burden was on appellant to allege and prove such facts.

Note. — Reported in 103 N. E. 411. See, also, under (1) 31 Cyc. 358; (2) 31 Oyc. 405; (3) 29 Oye. 208; (4) 29 Oye. 224; (5) 16 Cyc. 882; (6) 29 Oye. 22o, 229; (7) 29 Oyc. 222. As to jurisdiction of courts over associations and lodges, see 7 Am. St. 160; 68 Am. St. 856. As to remedies of members of assoeations and lodges, sec 59 Am. St. 198. As to recourse to the courts by members of benevolent, beneficial and similar associations to protect property rights, see 3 Ann. Oas. 211. As to the conclusiveness of decisions of tribunals of benevolent societies, see 49 L. R. A. 353; 2 L. R. A. (N. S.) 672.

"We see no error in the rulings of the trial court and the judgment is therefore affirmed.