Dolan v. Court Good Samaritan, No. 5910, Ancient Order of Foresters

• Decision Date: 30 March 1880
• Citation: 128 Mass. 437
• Parties: John Dolan v. Court Good Samaritan, No. 5910, Ancient Order of Foresters
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 437

John Dolan v. Court Good Samaritan, No. 5910, Ancient Order of Foresters

Supreme Court of Massachusetts

March 30, 1880

Argued October 29, 1879

Bristol. Contract by a member of the defendant society, a corporation duly established by law, to recover $ 63, alleged to be due the plaintiff according to the by-laws of the society. Trial in the Superior Court, without a jury, before Brigham, C. J., who ruled that the plaintiff could not recover; and found for the defendant. The plaintiff alleged exceptions, which appear in the opinion.

Exceptions sustained.

J. W Cummings, for the plaintiff.

M Reed, for the defendant.

Morton, J. Colt & Ames, JJ., absent.

OPINION

Morton, J.

The sixteenth article of the defendant's by-laws provides that "any member who may be sick, lame or infirm, and incapable of following his usual trade, occupation or employment, provided such sickness does not arise from intemperance or sexual indiscretion, in which case he will receive no benefits from the funds or court doctor, (notwithstanding he may continue to carry on or conduct the business by his wife, servant or children,) shall be entitled to a weekly allowance of five dollars, which shall be paid to him, if clear on the books, for 26 weeks." The seventeenth article provides that "no sick money shall be paid to any member until the chief ranger or secretary receive a certificate, signed by the surgeon of the court, or by a qualified surgeon, stating his illness, provided the member reside within two miles from the City Hall; if a sick member reside beyond such distance he will send a certificate from the surgeon who attends him, and send one every week during his sickness, disability or affliction to the secretary or chief ranger."

Without doubt the duties required of the sick member by the seventeenth article were intended and understood as conditions precedent to his right to claim the weekly allowance. But, upon the performance of these conditions, the sixteenth article declares that "he shall be entitled to" such allowance.

So far as the bill of exceptions shows, there is no discretion in the officers, or in any tribunal provided by the by-laws. The member is absolutely entitled to the allowance; there exists a simple duty on the part of the defendant to pay it to him, and there is an implied contract to do so founded upon the consideration of the payment by the member of his dues. The corporation is not a mere charitable society, but is rather in the nature of an association for the mutual insurance of its members against sickness or accident. If it refuses to perform its contract contained in the by-laws, the member who is injured may have recourse to the proper courts to enforce the contract.

The cases upon which the defendant relies are distinguishable from the case at bar. In each of those cases, the by-laws or articles of association of the society contained provisions for some body or tribunal who were to pass upon the question of the liability of the society, and each case was decided upon the ground that the parties, having selected a tribunal were concluded by the decision of the forum of their choice. Black & White Smiths' Society v. Vandyke, 2 Whart. 309. Toram v. Howard Association, 4 Pa. 519. Anacosta Tribe of Red Men v. Murbach, 13 Md. 91. But in the...