Dewar v. Minneapolis Lodge, No. 44, B. P. O. E.

• Decision Date: 02 March 1923
• Docket Number: No. 23175.,23175.
• Citation: 155 Minn. 98,192 N.W. 358
• Parties: DEWAR v. MINNEAPOLIS LODGE, No. 44, B. P. O. E.
• Court: Minnesota Supreme Court

155 Minn. 98

192 N.W. 358

DEWAR

v.MINNEAPOLIS LODGE, No. 44, B. P. O. E.

No. 23175.

Supreme Court of Minnesota.

March 2, 1923.

Appeal from District Court, Hennepin County; Geo. W. Buffington, Judge.

Action by J. E. Dewar against the Minneapolis Lodge, No. 44, Benevolent and Protective Order of Elks, etc. Verdict for defendant and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Syllabus by the Court

Where a club provides a few sleeping rooms in its club building for the accommodation of members, and furnishes and cares for such rooms, and retains general control and supervision over the entire premises, a member who rents one of these rooms is a lodger as distinguished from a tenant, and his right to occupy the room may be terminated without giving the notice required to terminate tenancies.

Plaintiff was a lodger, not a tenant; and his right to occupy a room in the club was lawfully terminated.

The courts will inquire into the proceedings by which a member was expelled from a fraternal order only for the purpose of ascertaining whether, under the laws of the order, the tribunal had jurisdiction to render the judgment which it did render, whether the proceeding was conducted in good faith and a fair opportunity given the accused to present his defense, and whether the laws of the land were violated.

A provision in the laws of a fraternal order that a member shall not appeal to the courts to redress alleged wrongs without first appealing to the tribunals of the order is valid and enforceable.

Plaintiff was expelled for violating such a provision, and the record discloses no ground on which the courts can hold such expulsion invalid. Edgerton & Dohs, of St. Paul, for appellant.

Brady, Robertson & Bonner, of Minneapolis, for respondent.

TAYLOR, C.

The Benevolent and Protective Order of Elks is a fraternal organization having a large membership throughout the United States, and many subordinate lodges. The defendant is a subordinate lodge of this order having more than 4,000 members, and has established and maintains a club, known as the ‘Elks' Club,’ in the city of Minneapolis, for the use and accommodation of the lodge and of its members. The club building contains lodge rooms, recreation rooms, dining rooms, and 24 sleeping rooms, which latter are rented only to members in good standing or their guests. The plaintiff was a member of this lodge and rented and occupied one of the sleeping rooms. He was evicted from this room and later was expelled from the lodge. He brought this action for damages, setting forth as a first cause of action that he was wrongfully evicted from his room, and as a second cause of action that he was wrongfully expelled from the lodge. At the close of the trial the court directed a verdict for the defendant. Plaintiff made a motion for a new trial and appealed from an order denying it.

Plaintiff occupied his room for some months and paid $35 per month for it. On June 21, 1919, he was requested in writing to vacate the room on the following Monday. He failed to do so, and, on June 30th, his effects were removed and the room locked against him. He contends that he was a tenant renting the room from month to month, and that his tenancy could be terminated only by giving him the statutory notice thereof. Defendant contends that plaintiff was a ‘lodger’ as distinguished from a tenant, and that the statutes governing the termination of tenancies did not apply.

‘The chief distinction between a tenant and a lodger apparently rests in the character of the possession. A tenant has the exclusive legal possession of the premises, he and not the landlord being in control and responsible for the care and condition of the premises. A lodger, on the other hand, has merely a right to the use of the premises, the landlord retaining the control and being responsible for the care and attention necessary.’ Ann. Cas. 1914A, note at page 200, in which the cases are cited.

‘A lodger is one who has leave to inhabit another man's house; one who lives in a hired room or rooms in the house of another.’ 19 Am. & Eng. Ency. 520.

‘Lodger. One who inhabits a portion of a house of which another has the general possession and custody.’ Bouvier's Law Dictionary.

Where the owner or landlord retains general control and supervision over the entire premises, and furnishes and cares for the rooms therein, and retains the right of access thereto for that purpose, the persons to whom he rents such rooms as places of abode are lodgers as distinguished from tenants. 1 Tiffany, Landlord & Tenant, 34; Commonwealth v. Lynchburg Y. M. C. A., 115 Va. 745, 80 S. E. 589,50 L. R. A. (N. S.) 1197;Fox v. Windemere Hotel Apartment Co., 30 Cal. App. 162, 157 Pac. 820.

[1] Plaintiff's room was a part of defendant's premises over which defendant exercised general control and supervision, and was furnished, heated, lighted and cared for by defendant. Although plaintiff paid rent by the month and had occupied the room for some months, he was merely lodger and not a tenant, and was not entitled to the notice required to terminate tenancies. He was requested to vacate, refused to do so, and at the end of the month was excluded from the room. As he neither alleged nor proved any agreement entitling him to occupy it beyond that date, he has no cause of action for the eviction.

His second cause of action is based on the claim that he was unlawfully expelled from the order. If his expulsion therefrom was not unlawful, this cause of action necessarily falls.

He was expelled for violating that part of his obligation in...