108 So. 636 | Ala. Ct. App. | 1926
The complaint as originally filed contained two counts. Subsequently there were added counts 3 and 4. Demurrers were filed to these counts and sustained as to counts 1 and 2 and overruled as to counts 3 and 4. Subsequently plaintiff filed counts A and B and withdrew all former counts. Thereupon, by consent, the defendant pleads in short by consent, with leave, etc. There is a judgment under date of April 10th overruling demurrers to counts A and B, but no such demurrers appear in the record, in the absence of which we will presume the ruling of the court was without error. The issues, therefore, in this case and for the purpose of this appeal, are made by *403
counts A and B and the plea of the general issue in short, etc. The issue thus formed is not for the breach of a contract, although the breach alleged does enter into the transaction. This suit claims damages for the unlawful exclusion of plaintiff from the rights and benefits to which he was entitled as a member of defendant's order. Being a mutual benefit association, the plaintiff is bound by its constitution, rules, and regulations, and, so long as plaintiff complies with these, defendant is bound to extend to him all of the rights and benefits to which he is entitled under his contract of membership, which in this case entitled him to a policy of insurance, weekly benefits from the local lodge and association, and participation in the meetings of the local lodges. In Supreme Lodge v. Kenny,
The sole controversy in this case arises over the question as to whether the plaintiff was in such default in the payment of dues as to render him liable to suspension from the order on September 10th, at which time plaintiff was excluded from the local lodge. Under the law of the order the subordinate lodge was charged with the duty of making all collections from the members and the duty of enforcing the penalty for a failure to pay rests upon the subordinate lodge, so that the subordinate lodge in dealing with this plaintiff was acting within the line and scope of its authority. If in excluding plaintiff its act was wrongful or malicious and in derogation of the rights of plaintiff, defendant would be liable. These questions were properly left to the jury under the charge of the court. The general charge as requested by defendant was properly refused.
Charge 2, refused to defendant, is not insisted upon in brief of counsel, and under the rule the assignment of error based upon the refusal of this charge is waived.
Refused charges 3 and 4 ask affirmative instructions as to both counts of the complaint. As we have seen, the evidence was in conflict, presenting a jury question as to both these counts, and therefore the refusal of these charges was not error.
Assignment of error No. 1 is not supported by the record, and hence will not be considered.
Assignment of error No. 2 is based upon a misconception of that part of the court's oral charge to which exception was reserved as follows:
"If you believe that he was in good standing, the next question for you to consider if this subordinate lodge over here suspended him, whether or not they had a right to suspend him, whether or not they were acting within the line and scope of their authority in suspending him, and whether or not the parent lodge would be bound by any action that that lodge did in that regard. As I say, if he was not in good standing, why, of course, that automatically suspended him; but, if he was in good standing, and this subordinate lodge took it upon themselves to suspend him in view of the fact that he was in good standing, the parent lodge would be bound by that action."
As to whether plaintiff was in good standing as a member of defendant's subordinate lodge was a disputed issue of fact. The only connection which plaintiff had with the parent order was through and with the subordinate lodge by reason of its agency for the parent order. The subordinate lodge collected all dues and assessments and made all reports to the defendant by and through which a member remained in good standing or became suspended. So at last it was the action of the subordinate lodge, under delegated authority from defendant, which suspended plaintiff, if he was suspended. If as matter of fact plaintiff had not paid his dues as required, then he became automatically suspended, and his exclusion by the subordinate lodge was right. If, however, the subordinate lodge reported plaintiff as nonfinancial, when, in fact, he was financial, then the subordinate lodge committed a wrong, for which defendant is liable.
There is no exception reserved to that portion of the court's general charge as to damages recoverable under count B of the complaint; therefore assignment of error No. 3 is not supported by the record.
If the plaintiff had, during his membership in the order, constantly paid his dues and assessments to the Grand Master Scribe instead of the Master Scribe, as is provided in the by-laws, and such payments had been recognized by defendant as a compliance *404 with plaintiff's obligation to pay, the defendant will not here be heard to say that the officer of the lodge to whom payment was made did not have authority to collect from plaintiff the last payment which he claims to have paid. The court did not err in permitting plaintiff to make this proof. Moreover, after all this testimony had been gone into, the court, on motion of defendant, excluded the testimony that payments were made to the Grand Master Scribe.
The court did not err in permitting plaintiff to prove what took place when he sought admission to the lodge to which, according to his testimony, he was entitled to attend. As has already been seen, the contract between plaintiff and defendant was entirely through defendant's local lodge. It was altogether upon the report of the local lodge that defendant acted with regard to this plaintiff and his standing and the gravamen of this claim is the exclusion from the rights and benefits incident to membership in good standing and the loss of the policy of insurance is only incidental recoverable damage.
The duty of collecting assessments from members of defendant's order is by Law No. 12, placed upon the local lodge and not upon any particular officer. If, therefore, defendant's wife paid such assessments to the local lodge and to an officer who was in the habit of receiving such payments, the defendant would be bound. The court was therefore not in error in permitting proof of such payments; especially is this so where it is shown that some of the payments to this same party were ratified by an acceptance.
As we have already pointed out, payments by members were to be made to the local lodge, and, when these payments were received by the local lodge, the obligation of the member to pay had been discharged. So that whether the payments were made to Thomas or to Joshua or to Paulk made no difference so long as the payments went to the local lodge of defendant.
The question of payment of dues by plaintiff prior to May, 1922, was immaterial; and, even if the objection of plaintiff was sustained upon a ground which was not justified, such action would not justify a reversal.
Upon the examination of L. B. Joshua, a witness for defendant, it was shown that Joshua was the officer designated by the local lodge to receive payments of dues and assessments from the members and that for this purpose Joshua had an assistant by the name of Paulk. It was shown by this witness that sick benefits were paid plaintiff up to and including May, 1922. This witness was then asked:
"After the lodge quit paying him sick benefits, did he ever pay any more money for his dues and assessments?"
This question was objected to upon the ground that there was higher and better evidence, the objection was sustained, and exception reserved. Defendant stated what he expected the answer to be so as to preserve the exception. That the question called for evidence germane to the issue is admitted; the sole ground of objection being that there was higher and better evidence of the fact sought. The inquiry in this case was not as to whether a record had been made of payments made by plaintiff to the local lodge, but whether, in fact, such payments had been made; nor was it shown that records had been made of all payments made by plaintiff. This witness was asked to state a fact independent of any record, and therefore the rule invoked by the objection does not obtain. The court, by its ruling, denied to defendant the testimony of its principal witness to the very fact upon which rested the defense of the case. This error entitles the defendant to a reversal.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.