Littleton v. Wells & McComas Council, No. 14

Boyd, J., delivered the opinion of the Court. This suit was instituted by the appellant against the appellee, which is alleged to be “an unincorporated voluntary Fraternal Beneficial Association duly organized and doing business in the State of Maryland.” The appellant claims that she is entitled, as the mother of John M. Littleton, to recover the sum of $500.00 by reason of the death of her son. It is conceded that he was a member of this order and that he was killed in an accident on the Baltimore & Ohio Railroad ⁴⁵⁵ on December 15th, 1900, but it is contended that by reason of certain provisions in the constitution and by-laws of the order he was not entitled to more than thirty dollars death benefits, for reasons that will be hereafter stated. A demurrer was filed to the declaration on the ground that the suit could not be maintained, on account of the fact that the defendant was unincorporated, as is disclosed in the declaration.

The demurrer was overruled, but being thus presented it is proper that we first dispose of that question. 1. An unincorporated society or association was regarded at common law as a partnership, so far as its rights and liabilities were concerned, and suits could not lje maintained by or against it in the name of the society or association, but the members composing it were the proper parties. It was held in Mears et al. v. Moulton et al., 30 Md. 142 , that the members of a voluntary unincorporated association, were entitled, as individuals having a common interest, to sue in regard to matters pertaining to or affecting their interests. Sec. 301 of Art. 23 of the Code (being sec. 215 of ch. 471 of the Act of 1868) provides that “It shall be sufficient in any suit, pleading or process, either at law or in equity, or before any Justice ofthe Peace,by or against any joint stock company or association, to describe the said joint stock company or association by the name or title by which it is commonly known, or by or under which its business is transacted.” In Powhatan Steamboat Co. v. Potomac Steamboat Co., 36 Md. 238 , a motion was made to set aside a judgment of condemnation which had been obtained by the Potomac Steamboat Company, under an attachment proceeding, and the fourth reason assigned for settingit aside was that it did not appear in the proceedings that the company was a corporation, and a private partnership could not maintain a suit, except in the names of the individual parties.

Bartol, C. J., in delivering the opinion of this Court quoted the above statute and said : “This provision is a sufficient answer to the fourth reason or cause assigned in support of the motion.” In 22 Ency. Pl. & Pr., 228, there is an excellent article on “Unincorporated Societies,” where manyau ⁴⁵⁶ thorities are collected and the statutes of different States referred to. From an examination of them it will be seen that the provisions of the statutes differ as to how such suits shall be brought—some providing that they shall be against the officers of the association, others against the associations by the names by which they are generally known or under which they carry on business, as our statute does. Such suits have been sustained in this State, as will be seen by reference to the late case of Schlosser v. Grand Lodge, 94 Md. 362 .

The question was not discussed there but this Court reversed the judgment recovered in favor of “a foreign unincorporated voluntary beneficial association doing business within the State of Maryland,” and awarded a new trial, which would have Leen useless unless the association could be sued. The statute does not take away the right existing at common law to sue the members of an unincorporated association, but the creditor has the option to sue either the association or the members, and when the suit is against the former a judgment obtained can only affect its joint property. The personal liability is ordinarily sufficient to induce members of such societies or associations to become incorporated, as in some cases the failure to do so might result in serious consequences to the members, and even if they be not liable as partners inter sese on the principles announced in Cannon v. Brush Electric Company, 96 Md. 469 , they may be responsible to creditors. We are of the opinion then that under the statute above quoted, and secs. 143E, etc., of Art. 23, regulating “Fraternal Beneficiary Societies, Orders or Associations” a beneficiary can sue such a lodge as the appellee, in the name by which it is commonly known, without suing the individual members. .2,.

Another technical question that is raised is whether the first count in the declaration is a good one. . The plaintiff sues the defendant ‘T. For money payable to the plaintiff For money had and received by the defendant for the use of the plaintiff.” In Merryman v. Rider, 34 Md. 98 , it was held that the omission in a declaration of the averment “For money payable by the defendant to the plaintiff” as a prefix to the ⁴⁵⁷ counts “For goods bargained and sold,” ete., “For work and labor,” etc., “For money had and received,” etc., was fatal on demurrer-the Code (now Art. 75, sec. 23), providing that “These words ‘money payable,’ etc., should precede money counts like the 1st to the 13th inclusive, but need only be inserted in the 1st.” The Court cited Place v. Potts, 8 Exch. 705, where Parke, B., said the declaration was bad on general demurrer, and that it ought to have averred that the debt was a money debt, and that it was payable before the commencement of the suit.” The case was distinguished from that of Fagg v. Mudd, 25 E. L. and Eq. Rep. 224, where it was held that the omission of these words was not fatal to a count “for money found to be due from the defendant to the plaintiff on accounts stated between them,” -this Court saying “The demurrer was overruled in that case, because said Lord Campbell, C. J., ‘the account being stated, and money found to be due, it was instantly payable, and therefore therd is only the omission of that which the law would imply and the form is consequently substantially framed,” In Scott v. Leary, 34 Md. 401 , this Court said that a count similar to that in Fagg v. Mudd, was good, although that count is one of those embraced by the statute above quoted, which requires them to be preceded by “money payable,” etc. To strictly follow the language of the statute, this count should have been ‘ ‘for money payable by the defendant to the plaintiff,” etc., but when the plaintiff sues the defendant “For money payable to the plaintiff. For money had and received by the defendant for the use of the plaintiff,” it is not only implied, but in effect stated that it was payable by the defendant.

No one can read that count without knowing that it meant to say that the money was payable by the defendant, and to strike it down for such an omission would be giving an extremely technical objection more effect than our present system of pleading cnntemplates. The forms of conveyances prescribed in our Code provide for the name of the grantee in the granting clause, but in Bay v. Posner, 78 Md. 47 , the omission of the name of the grantee in that clause was held ⁴⁵⁸ not to invalidate the deed, when it appeared from other parts of it who the grantee was intended to be. The demurrer was to the whole narr., and not to each count, and if the attention of counsel had been directed to this omission in the Court below, it could easily have been corrected, and that is another reason for not sustaining the demurrer, but independent of that we deem the count sufficient. 3. The principal questions involved arise under the following sections of Art. IV of the by-laws of the defendant: Sec. 1. “Every member of this Council shall pay eight dollars and sixty cents per annum as dues, payable weekly, and such further assessments as may from time to time be imposed by a two-thirds vote of the Council,” etc. Sec. 2. “It shall be the duty of each member to pay his dues, levies and fines, on or before the last meeting night in each quarter, and no brother owing thirteen weeks or more dttes shall be entitled to receive weekly or death benefits until thirteen weeks after paying all arrears.” Sec. 3. “Should any member suffer his account to remain unpaid for thirteen weeks, he shall forfeit all the rights and privileges, except that of being admitted into the council chamber, and funeral ceremony in case of death, and if allowed to remain unpaid twenty-six weeks, he shall be suspended from the order.” John M. Littleton paid his dues for the quarter ending the 27th of June, 1900, and on September 26th, his sister gave Dr. Groshans, who was a member and the physician of the lodge, the dues that were payable for the quarter ending on that date.

They lived a long distance from where the lodge met. She said “when she paid the money to Dr. Groshans he said it would be all right. She had paid other dues to him and the lodge always issued a receipt.” The Financial Secretary testified that he had no certain knowledge when Littleton’s last dues were paid, except by the entries on his book, which showed it to be October 10th, 1900, and a receipt for them offered in evidence bore the same date. Littleton was accidentally killed on December 15th, while at work as a brakeman on the Baltimore & Ohio Railroad.

There was no further payment due until ⁴⁵⁹ December 26th. It will be observed that Littleton was killed within the thirteen weeks after September 26th, when thirteen weeks of dues became payable, and the appellee contends that under sec. 2 of the by-laws above quoted he had forfeited his right to death benefits until the expiration of thirteen weeks after October 10th. The appellant sought to avoid the effect of this by-law by showing that the council had by its course of dealing practically constituted Dr. Groshans a collecting agent, and that hence payment to him on September 26th, was payment to the council. Under the constitution it was the duty of the Financial Secretary to receive all money for the council.

That officer admitted that he had received dues quite frequently from Dr. Groshans, but he denied that the doctor had to his knowledge “collected” any dues from members. The appellant asked him, “Have you been in the habit of accepting dues of various members of the council, which dues have been collected from the several members by this Dr. Groshans, and brought by him to the lodge and paid?” An objection to that question was sustained by the Court and that ruling is embraced in the first bill of exceptions. We think there was no error committed by the Court in so ruling. There was no evidence that Dr. Groshans had any authority to collect dues for the order, and conceding all that the testimony tends to show on that point, it amounts to nothing more than that some of the members gave their dues to Dr. Groshans to be paid to the Financial Secretary.

It might very well happen that members living at a distance would give him, or some other member who expected to attend the meetings of the lodge, their dues to be paid to the Secretary, but it was not payment to the council until paid to the proper officer. Payment to Dr. Groshans was of no more effect than payment to any other member, and he was the agent of the member giving him the money and not of the council, and hence a member so paying him took the risk of the dues not being paid by the time required by the by-law. 4. At the conclusion of the plaintiff’s testimony, the de ⁴⁶⁰ fen'dant offered two prayers which were granted. The first instructed the jury that there was no evidence legally sufficient to entitle the plaintiff to recover 'more than thirty dollaas, and the verdict must be for the plaintiff for that sum.

The second instructed them that the burden was on the plaintiff to show that her son was in good standing in the defendant council at the time of his death, and that the plaintiff had offered no evidence legally sufficient to prove that, and the verdict could not be for more than thirty dollars. That sum is fixed by sec. 3 of Art. 5 of the by-laws, which after fixing the amount of death benefits to be paid to those entitled to them, provides that “In case of the death of a non-beneficial member there shall be allowed the sum of thirty dollars.” The appellant contends : (a) That the plaintiff’s son was a beneficial member at the time of his death, and that the by-law set forth in sec. 2 of Art. 4 is unreasonable and void, as against the plaintiff. (b) That under the first count the sum of five hundred dollars collected by the defendant from the two Funeral Benefit Associations was money collected by it for' the use of the plaintiff, which ex cequo et bo7to it ought to pay over to the plaintiff. (a) Sec. 2 of Art. 4 of the by-laws is too plain to admit of any question as to its meaning, where it says “no brother owning thirteen weeks or more dues, shall be entitled to receive weekly or death benefits until thirteen weeke after paying all arrears," and the question to be determined is whether it is so unreasonable as to make it void.

This order doubtless has many thousand members and amongst them there are probably some who would not pay their dues promptly unless there be some penalty for their failure to do so, which will be effective. In Yoe v. Howard Mut. Benevolent Association, 63 Md. 86 , this Court, through Alvey, C. J., in speaking of such associations said: “Indeed, without the same strictness and punctuality observed by insurance companies, such associations could not subsist. If the obligations of members were not insisted on with strictness; the whole object of the association would be liable at ⁴⁶¹ any time to be frustrated, for if one member could be indulged beyond the limits prescribed by the articles of the association, each and every one of them could claim similar indulgence and the consequence might be an entire disappointment in the benefits to be received.

To obviate such possible consequences, and to effectuate the objects of the association, the obligations of members are required to be enforced with strictness. ” In this State it has been determined that insurance of this kind is substantially like that of ordinary life insurance, as will be seen by reference to Goodman v. Jedidjah Lodge, 67 Md. 117 ; Thomas v. Cochran, 89 Md. 402 , and other cases, and we have frequently held that members of such mutual associations are bound by their by-laws. Anacosta Tribe v. Murbach, 13 Md. 91 ; Osceola Tribe v. Schmidt, 57 Md. 98 , and Weigand v. Fraternities Accident Order, 97 Md. 443 . We do not think