Pearson v. Anderburg

• Decision Date: 20 March 1905
• Docket Number: 1574
• Citation: 80 P. 307,28 Utah 495
• Court: Utah Supreme Court
• Parties: LOUISA PEARSON, as Administratrix of the Estate of MARTIN PEARSON, Deceased, Respondent, v. T. E. ANDERBURG, ANDREW ANDERSON, JOHN ALLSOP, JOSEPH BURKINSHAW, J. A. BUTLER, JOHN BAKER, CHARLES CUSHING, A. J. CUSHING, JAMES M. CUSHING, D. A. DROWN, R. GARRATT, ORLANDER HARDCASTLE, EMIL HARTVICKSON, JOSEPH HEIMRICK, JULIUS HEUSSER, P. O. HAMMER, H. P. JOHNSON, JAMES LANE, OLAF LARSON, JOHN LATIMER, T. E. MARRIOTT, GEORGE MARRIOTT, PETER NICKELS, C. F. NELSON, JAMES NELSON, D. L. PENROD, ARTHUR PERRY, JOHN RIDEOUT, D. E. RIDEOUT, JR., A. G. ROBERTSON, A. STUART, W. T. VINCENT, T. L. WILLETT, WM. R. SOFFE, DAVID SHIELDS, and JOHN MARRIOTT, Appellants

80 P. 307

28 Utah 495

LOUISA PEARSON, as Administratrix of the Estate of MARTIN PEARSON, Deceased, Respondent, v. T. E. ANDERBURG, ANDREW ANDERSON, JOHN ALLSOP, JOSEPH BURKINSHAW, J. A. BUTLER, JOHN BAKER, CHARLES CUSHING, A. J. CUSHING, JAMES M. CUSHING, D. A. DROWN, R. GARRATT, ORLANDER HARDCASTLE, EMIL HARTVICKSON, JOSEPH HEIMRICK, JULIUS HEUSSER, P. O. HAMMER, H. P. JOHNSON, JAMES LANE, OLAF LARSON, JOHN LATIMER, T. E. MARRIOTT, GEORGE MARRIOTT, PETER NICKELS, C. F. NELSON, JAMES NELSON, D. L. PENROD, ARTHUR PERRY, JOHN RIDEOUT, D. E. RIDEOUT, JR., A. G. ROBERTSON, A. STUART, W. T. VINCENT, T. L. WILLETT, WM. R. SOFFE, DAVID SHIELDS, and JOHN MARRIOTT, Appellants

No. 1574

Supreme Court of Utah

March 20, 1905

Appeal from the Third District Court, Salt Lake County.--Hon. T. W Stewart, Judge.

Action to recover sick benefits. From a judgment in favor of the plaintiff, the defendants appealed.

MODIFIED AND AFFIRMED.

S.W Darke, Esq., and E. D. Hoge, Esq., for appellants.

Messrs Frick & Edwards for respondent.

STRAUP, J. BARTCH, C. J., concurs in the judgment. McCARTY, J., concurs.

OPINION

STRAUP, J.

--Defendants are members of a voluntary association known as and called "Sandy Lodge, No. 11, I. O. O. F., Sandy, Utah." One Martin Pearson was a member of said lodge from 1888, and, as claimed by the plaintiff, up to the time of his death, which occurred in May, 1901. Plaintiff, the widow and only heir of said deceased, was appointed administratrix of his estate, and, as such, brought and maintained this action against the said defendants, as members of said lodge, to recover sick benefits due the said deceased during his lifetime, from July 1, 1898, up to the time of his death, and for $ 75 funeral expenses. The case was tried before the court without a jury. Plaintiff had judgment, and defendants appeal.

It is urged by appellants that the plaintiff, in her capacity as administratrix, had no right to maintain the action. Under the laws, rules, and regulations of the lodge, the sick benefits, if at all, were due and owing the deceased, and were payable to him during his lifetime. They were not benefits due or payable to the widow or the family, or benefits due arising after the death of the said deceased. The deceased, had he lived, could have maintained an action therefor. The action did not abate by his death. The laws of the society provided, "In case of the death of a brother qualified to receive benefits, there shall be allowed as funeral expenses the sum of $ 75.00." Appellants admit the laws of the society are silent as to whom this shall be paid. While they assert the plaintiff, as administratrix, cannot sue therefor, and assert "neither the widow, heirs, nor any other person are mentioned as being entitled to benefits or funeral expenses," no assertion or claim is made by them as to who may demand or sue for the same. Because not being provided to whom the said expenses shall be paid, it did not preclude the administratrix suing for them. Bishop v. Grand Lodge (N.Y.), 20 N.E. 562. The action was, therefore, properly brought by and in the name of the personal representative.

It is urged that, inasmuch as the society was a voluntary association, the members thereof are not personally liable for the debts of the association. Many cases are cited holding that a member of an unincorporated social club, lodge, fraternal society, etc., is not liable for the debts or obligations of the society, unless it be shown in some way he had sanctioned or made himself liable. This may all be conceded. The action, however, was not brought or tried, nor was judgment rendered, upon any theory of law that the members were so personally liable. It was alleged in the complaint, and the evidence shows, that the association, as such, had trust funds in its possession and under its control which were collected and received by it from its members to meet and pay such like debts and obligations as this one. The action was not one seeking to obtain a personal judgment against these defendants, or to make them personally liable for

the debt sued for, or to satisfy the same out of their private property, but seeking to have paid and have satisfied the debt out of the said trust funds and property of the association. And the judgment, as entered, is not such whereby it may or can be satisfied out of the private property of the defendants, or any one of them. The judgment, as entered, can only reach the property of the association, and control the actions of the defendants as members thereof in respect thereto. Plaintiff could not have commenced and maintained this action against the association in its name, for a voluntary association can neither sue nor be sued in such way, but the only way to bring the association before the court is in the name of the members composing it, who are the proper parties. This may be done by making all the members or only part of them parties. "If the members of a society are so numerous that they cannot be made parties to a cause with any chance of bringing it to a hearing, in consequence of abatements and like difficulties, suit may be brought in the name of one or more for the use of all, or two or three members may be made defendants to represent the interests of all." Niblack, Ben. Soc., pp. 181-183; Dicey, Parties to Actions, pp. 145-150; 3 Am. & Eng. Encyc. L., p. 1055; Pomeroy's Rem., sec. 392; Liggett v. Ladd, 17 Ore. 89, 21 P. 133.

The next point urged is that the deceased, when he made application to become a member in 1888, stipulated that: "I will seek my remedy for all legal rights on account of said membership or connection therewith in the tribunals of the order only, without resorting to their enforcement, in any event or for any purpose, to the civil courts;" and, inasmuch as the record shows that the laws of the association provided a remedy for the grievance complained of by the tribunals of the lodge, and provided for appeals from a lower to a higher of its tribunals, such remedy was exclusive, or that, at least, such remedies must be pursued and exhausted before resort can be had to the civil court. This matter has given rise to much diversity of opinion among the decisions. One line holds such an agreement, when applied to such a question as here under consideration, is against public policy, and is void, especially when such an agreement is made in advance of any dispute or controversy. On the other hand, there is a line of decisions, and probably the greater number, holding that public policy does not preclude one from contracting to restrict such right, and that laws of the association to that effect, otherwise valid, are binding, unless, as some of these authorities say, it appears that the procedure under them was so irregular as to work gross injustice, or was done in fraud. Many cases showing these conflicting views are collected and cited in notes to Ryan v. Cudahy (Ill.), 49 L.R.A. 353, 3 Am. & Eng. Encyc. L. (2d Ed.) 1074, and Niblack, Ben. Soc., pp. 602-606. This court has already held that the requirement to resort to such remedies was not a condition precedent to the bringing of an action in the civil court. "To hold otherwise would be an attempt to clothe such voluntary association with power to create judicial tribunals, which would be contrary to the law of the land." Daniher v. Grand Lodge A. O. U. W., 10 Utah 110, 37 P. 245. Many cases collected in the above citations hold similarly. Among them may be noticed the following: Whitney v. Nat. Acc. Ass'n, 52 Minn. 378, 54 N.W. 184; Sanford v. Com. Trav. Ass'n (Sup.), 33 N.Y.S. 512; Id. 41 N.E. 694; Knorr v. Bates (Com. Pl.), 35 N.Y.S. 1060; Supreme Council v. Garrigus, 104 Ind. 133, 3 N.E. 818, 54 Am. Rep. 298; Barron v. Burnside, 121 U.S. 186, 7 S.Ct. 931, 30 L.Ed. 915; Ins. Co. v. Morse, 20 Wall. 445, 22 L.Ed. 365. We therefore hold that plaintiff was not required to exhaust the remedy provided by the tribunals of the association as a condition precedent to the bringing of this action. We have no doubt of the power of members of a voluntary association to restrict themselves, as to matters incidental to the operation of the association, to remedies before tribunals

created by the association, the nature and kind of which we need not here consider. We are, however, of the opinion that this case does not fall within such rule. The right to the moneys due here was a property right, and one created by and growing out of a contract. The fundamental principle of...