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Tucker v. Gillette.

more evident that there was some foreign substance in the wound which should be removed. It does not seem to us that either Mrs. Tucker or the physician, until they parted in November, 1899, had any thought that their relations as physician and patient had terminated. The wound was not healed and she was still his patient and he still owed her the duty of a physician and surgeon who had performed an operation. Her cause of action was not complete and the statute did not begin to run until such relation ceased at his office in November, 1898. The doctor could not relieve himself from this obligation, which had continued from the time of the operation, by severing his relations with her when she called on him in his office. If she required still further treatment, it was his duty to give it to her, and examine her if necessary, and although the relation may have terminated and did terminate at that time, his action would certainly not relate back to any period of time prior to November, 1898, when they last met.

Holding these views, we are of the opinion that the court of common pleas erred in instructing the jury to return a verdict for the defendant; that the case should have been heard and submitted to the jury upon proper instructions. For these reasons the judgment of the court of common pleas will be reversed.

BENEFIT ASSOCIATIONS.

[Lucas Circuit Court, July 2, 1901.]

Haynes, Parker and Hull, JJ.

MARY M. DIMMER V. SUPREME COUNCIL CATHOLIC KNIGHTS
OF AMERICA.

1. ILLEGAL EXPULSION-NEGLECT TO TAKE ACTION.

A member of a beneficial association after being illegally expelled therefrom cannot stand by and neglect and refuse to perform any of his duties for an unreasonably long time and still sustain such standing in the order as to entitle his beneficiary to collect the money due thereon.

2. MEMBER HELD TO HAVE ACQUIESCED IN EXPULSION.

Where a member of a fraternal, beneficial association was expelled from the branch to which he belonged, but took no appeal from the action of the branch expelling him, made no effort to be reinstated, attended no meetings thereof, paid no dues or assessments, and tendered none save one assessment immediately after his expulsion, which was returned to him, and who did nothing devolving upon him as a member for a period of about three years, he may be deemed as a matter of law, to have acquiesced in his expulsion, thereby defeating any recovery by his beneficiary.

BECOMES A Question of Law, When.

When such a length of time has elapsed that all reasonable men would agree that it was a reasonable or an unreasonable length of time, the question becomes a matter of law for the determination of the court.

HEARD ON ERROR.

Smith & Baker, for defendant in error.

Gilbert Harmon, for plaintiff, cited:

Defendant cannot complain of plaintiff's habits in 1891, when it continued to receive from him dues and assessments for more than three years afterwards, down to December 6, 1894. National Mutual Benefit Association v. Jones, 48 Ky. 110.

Lucas Circuit Court.

The beneficiary may maintain an action at law, on the certificate, though the defendant has refused to make an assessment. The defendant cannot take advantage of its own wrong, by refusing to make an assessment. Earnshaw v. Sun Mut. Aid Soc. 12 Atl. Rep. 884 [68 Md. 465; 6 Am. St. Rep. 460]; Lake v. Minn. Masonic R. Assn., 63 N. W. Rep. 263; [61 Minn. 96; 52 Am. St. 538]; Southwestern Mut. B. Assn. v. Swenson, 30 Pac. Rep. 405 [48 Kansas, 449]; Bentz v. N. W. Aid Assn., 41 N. W. Rep. 1037 [40 Minn. 202; 2 L. R. A. 784].

Before a member of a mutual benefit association can be expelled, specific charges in writing must be preferred, all rules must be strictly adhered to, and in absence of full and strict proof, every presumption is against the party claiming a forfeiture. Fisher v. Keane, L. R. 11, Ch. Div. 353; Labouchere v. Earl of Whorncliffe, L. R. 13, Ch. Div. 346; Commonwealth v. Guardians, etc., 6 S. & R. Pa. 469; Supreme Lodge v. Zuhlke. 21 N. E. Rep. 789 [129 III. 298]; Supreme Lodge v. Dahlberg, 28 N. E. Rep. 785 [138 II. 508]; State v. Adams, 44 Mo. 570; Scheufler v. Grand Lodge, 47 N. W. Rep. 799 [45 Minn. 256].

Expulsion without notice is abhorrent to all reason and void. Wechtel v. Nat. W. & O. B. Soc., 84 N. Y. 28; People v. Fire Department, 31 Mich. 458; Miner v. Mich. Mut. Assn., 29 N. W. Rep. 852 [63 Mich. 338].

Expulsion except by strict compliance with rules, is null. Carteret Club, etc., 40 N. J. L. 295; Vivar v. Knights of Pythias, 20 Atl. Rep. 36 [52 N. J. L. 455]; Wash. Ben. Soc. v. Bacher, 20 Pa. St. 425.

An association may be estopped by its action from claiming that the deceased was not a member in good standing, at the time of his death. Warnebold v. Grand Lodge, 48 N. W. Rep. 1069 [83 Iowa, 23]; National, etc. Assn. v. Jones, 48 Ky. 110.

Upon a motion to direct a verdict, the court is not authorized to weigh the evidence. It there is evidence tending to sustain plaintiff's case on all points, no matter how slight, it must be submitted to the jury. Stewart v. Toledo Bridge Co., 8 Circ. Dec. 454 (15 R. 601).

HULL, J.

This action is brought in this court to reverse the judgment of the court of common pleas, which was against the plaintiff in error, who was also plaintiff below. The action was brought by the plaintiff to recover $2,000, which she claimed was due her upon a benefit certificate issued by and under the authority of the defendant.

The defendant is a corporation, organized under the laws of the state of Kentucky, as a fraternal beneficial association, having councils or branches in various parts of the United States, and one branch being known as St. Martin Branch, No. 194, located at Toledo, Ohio.

The petition sets forth that this last mentioned branch, on January 27, 1892, executed and delivered to one Mathias Dimmer, the father of the plaintiff, a benefit certificate for the sum of $2,000, thereby insuring the life of Mathias Dimmer, according to the rules and ordinances of the association. And the petition further sets forth generally that he paid his dues and assessments up to December 6, 1894, and that he at that time paid the amount of his dues, but that said sum was returned and refunded to him on the following day, and that he had been ready, willing and able to pay all of his dues and asessments from that time on, if they had been received, but they were refused by the association, and on November 18, 1897, said Mathias Dimmer died, leaving the plaintiff

Dimmer v. Supreme Council Catholic Knights.

still the beneficiary, as it is claimed, of this certificate, and she asks Judgment for the amount of said certificate, viz, $2,000, with interest.

A copy of the certificate is attached to the petition, and it recites among other things, as follows: "The said Supreme Council Catholic Knights of America, agrees to pay to his daughter, Mary M. Dimmer, the beneficiary designated by said assured in his application, upon due proof of the death of said assured, he being in good standing in the order, the sum of two thousand dollars."

The answer admits the issuing of the certificate, and sets up, in substance, that from and after December 6, 1894, no dues or assessments had been paid by said Mathias Dimmer; that, contrary to the rules of the association, he was in the habit of becoming intoxicated; that charges were made against him in 1892-not, however, charging him with drunkenness, but with other things-and charges were again filed against him in 1894, and it is alleged that on December 6, 1894, he was expelled from the association, and that from that time on he paid no dues or assessments; that he took no action in regard to the judgment of expulsion, made no objection to the action of the society in that behalf; and it is claimed that by reason of his conduct which led to his expulsion, and by reason of the expulsion itself, he had ceased to be a member of the association and was not a member in good standing at the time of his death, and therefore, that his beneficiary is not entitled to recover.

The case came on for trial before a court and jury, and at the conclusion of the evidence, evidence was offered by both parties, the court, upon motion, instructed the jury to return a verdict in favor of the defendant, which was done and judgment afterwards entered thereon, and it is this judgment that is sought to be reversed.

It is claimed on the part of the plaintiff that Mathias Dimmer's expulsion from the branch was wholly irregular, illegal and void, and therefore it had no effect upon his standing or rights in the association, or upon the rights of his beneficiary after his death.

It appears from the record that Dimmer became a member of the association and that this certificate was issued to him in the year 1892. Prior to that time, in 1891, he had been adjudged a drunkard, by the probate court, and a guardian appointed for him pursuant to the statute. It does not appear from the record whether the officers of the association or branch had any knowledge of this fact, or not at the time he was admitted; there was no evidence on that, one way or the other. At any rate, he joined the association and a certificate was issued to him on January 21, 1892. In that year, when there was some question made about changing the beneficiary, the matter was put off, as the record shows, and an investigation of "Brother Dimmer," as he is called in the record, was ordered, as it was claimed that he was drinking, but nothing was done, so far as appears, upon the charge.

In October, 1894, another charge was filed against him, in substance to the effect that he was guilty of misconduct in certain things that he had said, charges which he had made in regard to officers of the branch. No notice was given to Dimmer of this charge. His guardian was a member of the branch, Mr. Kirschner, who attended the meetings regularly, and soon after Dimmer's expulsion Mr. Kirschner was elected president of the branch. He was a prominent member of it on December 4, atter these charges were filed, on December 6, 1894, and Dimmer was expelled.

Lucas Circuit Court.

The minute of his expulsion is very brief; it simply states that Mathias Dirumer was expelled from the branch.

It does not appear, and the record tails to show that any notice had been given to Dimmer of these charges. His guardian learned of his expulsion the next day, however, and very shortly thereafter. according to his guardian's recollection, he notified Mr. Dimmer that he had been expelled. Although Dimmer was under guardianship, he was not insane or an imbecile, but he was under guardianship on account of his habits of intoxication and his property and money were under the control of Mr. Kirschner, his guardian.

Upon its coming to Dimmer's knowledge that he had been expelled, he took no action whatever, himself personally or through his guardian, to secure a reinstatement; he took no appeal to the supreme council within thirty days, as was provided by the constitution and by-laws that any member might do, for any grievance that he had. These dues which were paid December 6, 1894, were returned the next day to his guardian, and the guardian took no action, paid no attention to the action of the branch, made no effort to pay any further dues after that as long as he remained the guardian, and made no offer to pay any assessments.

The dues of the branch were fifty cents per month, and assessments were made from time to time as it was found necessary. A large number of assessments were made from the time of Dimmer's alleged expulsion until his death, none of which were paid by him, and no offer made to pay. According to the pleadings and the evidence, it seems that there were something like one hundred assessments made, amounting to about $135, during that period.

Dimmer died on November 18, 1897, about two weeks less than three years after his expulsion. Mr. Kirschner's guardianship terminated and he was discharged as guardian and Dimmer restored to his property October 1, 1895, more than two years before his death.

After the discharge of his guardian Dimmer came into possession of his property and his money, but paid no attention to the action of the branch. He did nothing which would devolve upon him to do as a member of the society; he attended none of its meetings; he paid no monthly dues; he paid no assessments; he tendered none; he took no appeal from the action of the branch in expelling him in 1894; and, so far as his conduct shows, he was satisfied with the action of the organization and acquiesced therein and had no desire to longer continue a member of the organization or to keep up his insurance and keep alive the benefit certificate which he had originally taken out. As regards his conduct he could not have disregarded the branch and its organization more if he had never been a member of the society. This conduct continued a little over two years after the guardianship was discharged, wher his death occurred; the period all together from the time of his expulsion to his death was about three years.

It is contended by the defendant in error that although the expulsion of Dimmer was void and of no effect, yet that his conduct was such that he should be deemed in law to have acquiesced therein and held to have assented to the action of the lodge and not to be entitled to any of the benefits of the organization, or rather, that his beneficiary should not be so entitled.

The judge of the court of common pleas was of the opinion that Dimmer had acquiesced in this action of the branch for such a length of time, or, rather, had stood by for such a length of time, that he must

Dimmer v. Supreme Councii Catholic Knights.

be deemed, as a matter of law, to have acquiesced in his expulsion, and, on that ground, directed a verdict.

Several cases have been cited by counsel and it seems to be pretty well established by the authorities that the action of the council in expelling Dimmer, taken without notice to Dimmer and without any opportunity on his part to make a detense, was irregular and void. On the other hand, there are authorities to the effect that if a member of such an organization acquiesce in such an expulsion and makes no objection to such an action for such a length of time as a court would pronounce reasonable, that he should be deemed in law to have acquiesced in the expulsion, athough it was void, and be adjudged no longer a member of such an organization.

During the three years after Dimmer's expulsion, he bore none of the burdens of the organization. While the members who were in good standing were paying their dues and paying their assessments, he was paying nothing. The council was purely a mutual or fraternal organization. The insurance or benefits were made up entirely from assessments and dues of members that were paid in, in accordance with the constitution and by-laws of the organization. During that time he did nothing, offered to do nothing which devolved upon him to do as a member of this organizatior. It is urged that he was not required to do a vain thing, as he had been expelled and as his last payment had been refunded, that he was not required to do more. It this be the rule, he might have stood idly by, without performing any of these duties, as suggested in argument, for thirty years, and still, upon his death, have been regarded as a member in good standing and his beneficiary entitled to profit by the certificate or be paid the amount named therein.

A case was cited below by the trial judge which seems to us to be in point: Glardon v. Supreme Lodge, 50 Mo. App. 45, where it is said in the syllabus:

"Where the suspension of a member of a mutual benefit society by his lodge is without jurisdiction, as where it takes place upon a charge upon which the lodge has no jurisdiction to try him, his expulsion is null and void, and, being so, it is not incumbent upon him to take steps to have it reversed in a higher judiciary order.

"But it is, nevertheless incumbent upon him to affirm or disaffirm the act of expulsion within some reasonable time and in some distinct manner under the circumstances; and where he takes no steps of any kind to secure his reinstatement, allows dues to remain unpaid which had accrued and were payable prior to the date of his expulsion, and neither tenders such dues nor any which accure subsequently, he must be taken to have acquiesced in and consented to the sentence of expulsion, and no recovery can be had for benefits dependent upon his continued membership."

In this case the party had acquiesced, had failed to perform any of his duties for a period of about fifteen months prior to his death, and the court say, on page 58:

"But the plaintiffs plead the void sentence of expulsion, accruing after these dues became payable, as a fact excusing him from making any tender of these or any subsequently accruing dues. If this position is tenable in a case where a subordinate lodge, or the officers of it, should make the mistake of expelling or suspending a member without jurisdiction, or in violation of the laws of the order, the expelled or suspended member might rest indefinitely in his state of expulsion or

27 O. C. D. Vol. 12

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