Moon v. Flack
| Citation | 65 A. 829,74 N.H. 140 |
| Parties | MOON v. FLACK et al. |
| Decision Date | 05 February 1907 |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court; Chamberlain, Judge.
Case by Thomas C. Moon against J. D. Flack and others, for libel, malicious prosecution and conspiracy to unlawfully expel the plaintiff from a lodge of Odd Fellows, of which all the parties were members. Case transferred from the trial term on plaintiff's exception to the granting of defendants' motion for a nonsuit. Exception overruled.
The count for libel was abandoned. The second count is for malicious prosecution in the lodge under its code of rules and laws, in which Moon was charged with conduct unbecoming an Odd Fellow, in that he had threatened to shoot the defendant Clement. The third count alleges a conspiracy to institute the prosecution above referred to, and the prosecution of the same without probable or justifiable cause, in consequence of which the plaintiff was expelled and excluded from the lodge for a long time. It avers that the plaintiff was not guilty of any offense under the laws of the lodge, and that the lodge and its tribunals had no jurisdiction in the premises, but were induced to take unlawful cognizance and jurisdiction by the false show of authority and pretended performance of duty by the defendants, who were then officers of the lodge. The constitution of the order provides that "any member found guilty of conduct unbecoming an Odd Fellow may be fined, reprimanded, suspended, or expelled, as the lodge of which he is a member may determine." The by-laws provide that "any member who shall be guilty of improper conduct in or out of the lodge * * * shall be subject to a fine, suspension, or expulsion." The rules of procedure provide for the appointment of a committee of five members for the trial of offenses, who shall be "disinterested in the result of the controversy, and not prejudiced against either of the parties to the proceeding." The accused may challenge not exceeding three of the committee. The evidence tended to show that the plaintiff and the defendant Clement had some trouble, as a result of which the plaintiff filed charges against the latter in the lodge; and, at a trial thereon, the plaintiff said that Clement should never be Noble Grand, for he would shoot him first. Clement was acquitted. Subsequently the defendant Flack filed a written complaint against the plaintiff, charging him with conduct unbecoming an Odd Fellow, in making the threat above referred to. The plaintiff, being duly notified of the complaint, and of the time for a hearing, appeared and said he was ready for trial. Flack as the Noble Grand, and Clement as the Vice Grand, appointed the committee. The defendant Fogg was appointed on the committee, and at first declined to serve, on the ground that he should vote to expel Moon; but, upon being urged to serve by Flack, he consented to do so. The plaintiff was asked if he bad any objection to the committee, and said he had none; but he thought it was a "put-up job." When the committee met for the trial the plaintiff was not present, but he wrote a letter, saying the committee could go on, "as the Noble Grand can, of course, prove his charges." Eight witnesses testified to the language used by the plaintiff. It did not appear that the committee was sworn, as provided in the by-laws. A majority of the committee reported that the accused was guilty as charged and recommended expulsion; one member of the committee recommended suspension for three years. Both recommendations were at first rejected, but subsequently a vote for expulsion was passed. The plaintiff appealed to the Grand Lodge, and was restored to membership. There was other evidence showing that the defendants entertained hostile feelings toward the plaintiff.
Napoleon J. Dyer and David F. Dudley, for plaintiff. Frank M. Beckford, Walter S. Peaslee, Charles B. Hibbard, and Oscar L. Young, for defendants.
WALKER, J. One count charges the defendants with malicious prosecution in instituting and carrying on a proceeding in the lodge of which all the parties are members, for the expulsion of the plaintiff. In order to sustain an action of this character, it is necessary for the plaintiff to show that the defendants instituted the prosecution against him without having probable cause to believe he was guilty of the offense charged. Cohn v. Saidel, 71 N. H. 558. 566, 53 Atl. 800. To say that a threat by one member of a fraternal order to kill another would not furnish probable cause for the latter to believe that the former was guilty of "improper conduct," or conduct "unbecoming" a member, within the meaning of a by-law, providing for the expulsion of members so offending, would be to deprive language of its obvious and ordinary meaning. The plaintiff admitted that he used the threatening language, but claims that it constituted no offense under the by-laws. Evidently, the defendants were justified in believing that it did have that character and in submitting the question to the lodge, the proper tribunal to pass upon it. In the absence of...
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