Delaware Lodge No. 1, I. O. O. F. v. Allmon

• Decision Date: 15 December 1897
• Citation: 39 A. 1098,17 Del. 160
• Court: Delaware Superior Court
• Parties: DELAWARE LODGE NO. 1, I. O. O. F., d. b. a., v. GEORGE ALLMON, p. b. r

39 A. 1098

17 Del. 160

DELAWARE LODGE NO. 1, I. O. O. F., d. b. a., v. GEORGE ALLMON, p. b. r

Superior Court of Delaware, New Castle County

December 15, 1897

Superior Court, New Castle County, November Term, 1897.

ACTION OF ASSUMPSIT (No. 142 to May T. 1896,) to recover $ 81.00 balance due, as alleged by the plaintiff, for sick benefits from the defendant corporation.

The usual pleas were filed by the defendant and five special pleas, and special replications filed by the plaintiff.

Before the jury was empaneled Mr. Knowles, on behalf of the plaintiff, asked the Court to excuse for cause from serving upon the jury any member of a lodge of Odd Fellows who might be called. This the Court refused to do, but limited such disqualification to serve upon the jury to members of the defendant Lodge.

At the trial it was proved on the part of the plaintiff that he was a member in good standing of the defendant Lodge, that up to and for some time prior to October 14th, 1895, he had been receiving sick benefits from the Lodge but that on that date while he was still sick and under the Doctor's care payments to him were stopped, upon the report of the members of the Relief Committee to the Lodge that in their judgment he was not sick enough to entitle him to benefits; that he was informed by a member of the Lodge, delegated to come to him and speak for the Lodge, that they had held a meeting and decided that he was no longer entitled to sick benefits, assigning the reason of the Lodge for so doing and telling the plaintiff he hoped he would not bring suit over the affair and that he would go to the Lodge and see if he could not have the matter opened up for him; that thereafter the plaintiff wrote two letters to the Lodge asking what they had done in the matter or what they were going to do, and received no reply.

The plaintiff claimed that he had no notice of the meeting of the Lodge at which his name was stricken from the sick list; that the hearing was therefore an illegal one.

The defendant contended that there was no hearing of any kind. The only action ever taken by the Lodge was merely the passing of a resolution to accept the weekly report of the Relief Committee made to the Lodge at the regular meeting, in which report the Relief Committee said that they considered the plaintiff no longer entitled to benefits.

Mr. Harman offered to produce John. A. Kelley, the Justice of the Peace before whom the case was tried below, to prove certain statements that were made by the defendant Lodge at said hearing; stating that while he was aware that it had been ruled that a magistrate or other judicial officer could not be compelled to take the witness stand under such circumstances, on the ground of public policy, yet that if he desired to do so it had been permitted by the Court.

LORE, C. J:--

This matter has been up before the Court recently and we have ruled such witnesses out on the ground of public policy, broadly.

The plaintiff's counsel excepted to the above ruling.

When the plaintiff below had rested, Mr. Hilles, for the defendant, moved for a non suit; because he contended that the plaintiff by his own testimony had clearly shown that under the constitution and by-laws of the Grand Lodge of Delaware and of Delaware Lodge No. 1, I. O. O. F., he had not put himself in the position to maintain his action in Court.

The Court held the matter under advisement over night, and upon the re-assembling of Court the next day rendered the following decision:

LORE C. J:--

After due consideration of the motion for a non suit in the case now on trial, the Court are of the opinion that the non suit ought to be refused; the points raised can be very properly considered in our charge to the jury.

PLAINTIFFS' PRAYERS.

The plaintiff below prayed as follows:

First. If the Lodge held a meeting without notice to Mr. Allmon, and, without giving him a hearing, decided he was not entitled to sick benefits; or, if it was guilty of any act refusing, hindering or delaying Mr. Allmon in taking an appeal if he so desired; or if it wrongfully broke its contracts with Mr. Allmon,--then he was justified at once in invoking the assistance of the Courts. Bacon on Ben. Soc. Sec. 107 and cases 102; Sup. Council Chosen Friends vs. Forsinger, 125 Ind. 58; Reed vs. P., W. & B. R. R., 3 Houst., 204.

(a.) A "hearing" means the right to be present and "have counsel and an opportunity to question witnesses and offer evidence in one's behalf. Bacon on Ben. Soc. Sec. 102-164; Murdock vs. Phillip's Academy, 12 Pickering, 244; 31 Mich. 464 and cases; 137 Mass. 331.

(b.) And no usage can deprive one of his right to be present and have a hearing; nor "justify the hearing of one party and his witnesses only in the absence of and without notice to the other party": Bacon on Ben. Societies, Sec. 102--164; Oswald vs. Earl Gray, 24 L. J. Q. B., 69; Plews vs. Middleton, 6th A. & E. N. S., 845, or 14 L. J. Q. B., 139.

Second, If Mr. Allmon was notified by any person sent, or authorized to be sent, by the Lodge that it had acted upon his case, and decided that he was no longer entitled to benefits, then Mr. Allmon, if he received no notice and was given no hearing, was justified in immediately resorting to the Courts for legal redress; or, if Mr. Allmon was made to believe from any acts or declarations of any officer, member or agent of said Lodge, that the Lodge had acted upon his case and decided that he was no longer entitled to benefits (though not expressly authorized by the Lodge so to do in this particular instance) and the said officer, member or agent by general custom, or by the constitution and by-laws of said Lodge, was invested with general authority to so act or so speak, then Mr. Allmon, if he received no notice and was given no hearing, was justified in immediately resorting to the Courts for legal redress. "Qui facit per alium facit per se." Bacon Ben. Soc. Secs. 459; 125, to p. 204; 133 and 151.

DEFENDANT'S PRAYERS.

The defendant below prayed as follows:

First. That the Court instruct the Jury to find for the defendant below.

Second. If the Jury shall believe from the evidence that George Allmon was notified that he had been declared by the Relief Committee or by the Lodge no longer entitled to benefits, it was his duty to apply to the Lodge for a hearing and to have the matter there determined; and if he did not do so, he cannot maintain this action.

Third. It was the duty of the plaintiff to exhaust all of the remedies provided by the constitution and by-laws of the Order to which he belonged, and until he has so exhausted these remedies he cannot maintain an action at law.

Black &c. vs. Vandyke, 2 Whart., 309; VanPoucke vs. Netherland &c. Society, 29 N.W. 863; Anacosta Tribe vs. Murbank, 13 Md. 91; McAllis vs. Supreme Sitting &c., 13 A. 755; Toran vs. Benefit Society, 4 Pa. St., 519; Oscaloosa Tribe vs. Schmidt, 57 Md. 98; Grosvenor vs. United Society, 11, Mass., 78; 90.

Livy vs. I. O. O. F., 110 Cal. 297; Karcher vs. Sup. Lodge, 137 Mass. 368; 372; Spillman vs. Supreme Council, 157 Mass. 128; Crumlish vs. Wilmington & Western R. R. Co., 5 Del. Chan. Reps., 270; Rood...