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were deceived by the claimed defect On the trial it was stipulated by the in the pleading, or that they were opposing counsel that the petitionthereby placed at a disadvantage in ers were members in good standing preparing and presenting their de- on June 24, the date of the attempt. fense. It is clear that a right re- ed expulsion, and that they had sult was reached, and under the pro- thereafter tendered their dues. visions of § 475 of the Code of Civil which had been refused. This, in Procedure and the requirements of the absence of a contrary showing the provisions of $ 4! of article 6 of by defendants that

Evidence-sof. the Constitution, no miscarriage of they had forfeited ticiency-stipujustice having resulted, the error, their rights, was a Appeal-effect of

if any, of the trial sufficient showing that the plaintiffs misjoinder of court in overruling had continued to be members in parties.

the demurrer, can- good standing, and were, on the not be availed of to secure a revers- date of the filing of the petition, enal of the judgment. Atlas Develop- titled to a restoration of the priviment Co. v. National Surety Co. leges appertaining thereto. It was Cal. —, 212 Pac. 196.

not necessary that petitioners In Pleasant School Twp. v. Fultz, should anticipate the defense of the

Ind. App. — 137 N. E. 60, the defendants by alleging the insufficourt, applying a statute similar in ciency and illegality of the expulsion effect to the provisions of the above- proceedings. Nuckolls v. College of cited sections of the Code and Con- Physicians & Surgeons, 7 Cal. App. stitution, held that "no objection 233, 94 Pac. 81. The sufficiency and

, . taken by demurrer and overruled legality of the purported expulsion shall be sufficient to reverse the proceedings were matters of dejudgment if it appears from the fense. The burden of the evidence whole record that the merits of the showing that the plaintiffs had been cause have been fairly tried and de- legally expelled was upon the determined." And in Davis v. Hunt- fendants. Code Civ. Proc. § 1869; er, — Ind. App. --, 138 N. E. 785, Melone v. Ruflino, 129 Cal. 514, 79 the same court held that wherever Am. St. Rep. 127, 62 Pac. 93. This a complaint might have been defendants failed to do. amended, on motion in the trial It follows from what has been court, so as to conform to the evi- said that plaintiffs are entitled to dence admitted without objection, the writ of mandamus restoring the court would, on appeal, deem them to their privileges in the sothe amendment to have been made. ciety.

Before the plaintiffs were entitled Judgment affirmed. to the relief prayed for, it was in

We concur: Wilbur, Ch. J.; Sea. cumbent upon them to prove that

well, J.; Myers, J.; Waste, J.; Law. they were, on the Mandamusdate of the filing of

lor, J.; Kerrigan, J. right to.

their petition, mem- Petition for rehearing denied bers in good standing in the society. June 14, 1923.

ANNOTATION.

Right of member of society with benefits in nature of insurance to notice and

hearing before suspension or expulsion. I. In general, 1512.

presupposes some formal act by the II. Sufficiency, 1514.

society in the nature of an expulsion II. Waiver, 1516.

or suspension, and is not concerned

with the effect of provisions of the 1. In general.

contract which automatically operate The question under annotation as an expulsion, suspension, or for

V.

feiture of benefits, in the event of the default of a member in the performance of his obligations.

The question sometimes, as in the reported case (TABOADA V. SOCIEDAD ESPANOLA DE BENEFICENCIA MUTUA, ante, 1508), arises in a mandamus proceding to compel restoration to membership, sometimes in actions for damages for the expulsion, and sometimes in actions for benefits. The result, however, does not seem to have been affected by the form of action or proceeding.

A member of a society with benefits in the nature of insurance is entitled to notice and a hearing before his suspension or expulsion.

Arizona. Jordan V. Logia Suprema De La Alianza Hispano-Americana (1922) 23 Ariz. 584, 24 A.L.R. 974, 206 Pac. 162.

California. Otto v. Journeymen Tailors' Protective & Benev. Union (1888) 75 Cal. 308, 7 Am. St. Rep. 156, 17 Pac. 217; Grand Grove, U. A. 0. D. v. Garibaldi Grove (1894) 105 Cal. 219, 38 Pac. 947; Von Arx v. San Francisco Gruetli Verein (1896) 113 Cal. 377, 45 Pac. 685; TABOADA V. SOCIEDAD ESPANOLA DE BENEFICENCIA MUTUA (reported herewith)

herewith) ante, 1508.

Connecticut.-Lahiff v. St. Joseph's Total Abstinence & Benev. Soc. (1904) 76 Conn. 648, 65 L.R.A. 92, 100 Am. St. Rep. 1012, 57 Atl. 692; Gervasi v. Societa Giusippi Garibaldi (1921) 96 Conn. 50, 112 Atl. 693.

Georgia. United Bros. v. Williams (1906) 126 Ga. 19, 115 Am. St. Rep. 64, 54 S. E. 907.

Illinois. Supreme Lodge, A. 0. U. W. v. Zuhlke (1889) 129 Ill. 298, 21 N. E. 789; Women's Catholic Order of Foresters v. Haley (1900) 86 Ill. App. 330.

Iowa. Byram v. Sovereign Camp, W. W. (1899) 108 Iowa, 430, 75 Am. St. Rep. 265, 79 N. W. 144.

Kentucky. Wallace v. Grand Lodge, U. B. F. (1908) 32 Ky. L. Rep. 1013, 107 S. W. 724.

Massachusetts. Horgan v. Metropolitan Mut. Aid Asso. (1909) 202 Mass. 524, 88 N. E. 890.

Michigan. Erd v. Bavarian Nat.

Aid & Relief Asso. (1887) 67 Mich. 233, 34 N. W. 555.

Minnesota. Malmsted v. Minneapolis Aerie (1910) 111 Minn. 119, 137 Am. St. Rep. 542, 126 N. W. 486; Kulberg v. National Council, K. L. S. (1914) 124 Minn. 437, 145 N. W. 120.

Missouri. Ludowiski v. Polish Roman Catholic St. S. K. Benev. Soc. (1888) 29 Mo. App. 337; State ex rel. Young v. Temperance Benev. Asso. (1890) 42 Mo. App. 485; Lysaght v. St. Louis Operative Stonemasons' Asso. (1893) 55 Mo. App. 538; Slater v. Supreme Lodge, K. L. H. (1898) 76 Mo. App. 387; Seehorn v. Supreme Council, C. K. A. (1902) 95 Mo. App. 233, 68 S. W. 949. New Jersey. -- Berkhout v. Supreme

. Council, R. A. (1899) 62 N. J. L. 103, 43 Atl. 1; Byrne v. Supreme Circle, B. U. (1907) 74 N. J. L. 258, 65 Atl. 839; Venezia v. Italian Mut. Benev. Soc. (1907) 74 N. J. L. 433, 65 Atl. 898; D'Aloia v. Union Fratelianza Italiana (1913) 84 N. J. L. 683, 87 Atl. 472.

New York. Wachtel Noah Widows & Orphans' Benev. Soc. (1881) 84 N. Y. 28, 38 Am. Rep. 478; People ex rel. Deverell v. Musical Mut. Protective Union (1889) 118 N. Y. 101, 23 N. E. 129; People ex rel. Doyle v. New York Benev. Soc. 0. M. (1875) 3 Hun, 361; People ex rel. Merscheim v. Musical Mut. Protective Union (1888) 47 Hun, 273; Simmons v. Syracuse, B. & N. Y. & 0. & S. R. Benev. Soc. (1890) 56 Hun, 645, 32 N. Y. S. R. 428, 10 N. Y. Supp. 293; People ex rel. Meads

v. McDonough (1896) 8 App. Div. 591, 10 N. Y. Supp. 1147; Corregan v. Hay (1904) 94 App. Div. 71, 87 N. Y. Supp. 956; People ex rel. Wang v. Lubliner United Bros, Asso. (1910) 137 App. Div. 173, 122 N. Y. Supp. 11; People ex rel. Schmitt v. St. Franciscus Benev. Soc. (1862) 24 How. Pr. 216; Fritz v. Muck (1881) 62 How. Pr. 69; Downing v. St. Columba's R. C. T. A. B. Soc. (1881) 10 Daly, 262; People ex rel. Baker v. Coachman's Union Benev. Asso. (1893) 4 Misc. 424, 24 N. Y. Supp. 114; People rel. Grunwald Independent Order, A. I. (1895) 13

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Misc. 426, 34 N. Y. Supp. 675; Cal. 219, 38 Pac. 947, to be well Zangen Krakauer Young Men's settled that a by-law of a benevolent Asso. (1899) 26 Misc. 332, 56 N. Y. association which authorizes the exSupp. 1052; Fay v. Supreme Tent, pulsion of a member without a hearK. 0. T. M. (1902) 38 Misc. 427, ing is unreasonable and without 77 N. Y. Supp. 994; Kohler v. Klein effect. (1902) 39 Misc. 353, 79 N. Y. Supp. And a by-law giving a member of 866.

a mutual benefit society the right to Pennsylvania. Com. v. Pennsyl- hearing before expulsion cannot be vania Beneficial Inst. (1815) 2 Serg. & suspended, so as to permit expulsion R. 141; Washington Beneficial Soc. without hearing. TABOADA V. SOCIEv. Bacher (1853) 20 Pa. 425; DAD ESPANOLA DE BENEFICENCIA MUMacavicza Workingman's Club TUA (reported herewith) ante, 1508. (1914) 246 Pa. 136, 92 Atl. 41; But a by-law which provides for the Dubree v. Reliance Engine Co. (1875) expulsion of a member without af1 W. N. C. 524; Gill v. Ladies Catholic fording him an opportunity of defendBenev. Asso. (1908) 36 Pa. Super. Ct. ing himself against the charges upon 458; Young v. Aeolian Council (1915) which it is based is not altogether 59 Pa. Super. Ct. 174; Engle v. Potts- null and void, but only so to the exville Div. (1917) 66 Pa. Super. Ct. tent that it deprives such member of 356; Jennings v. Grand Fraternity a hearing from which he might (1917) 67 Pa. Super. Ct. 139.

possibly derive a benefit, and, where Rhode Island.-Lavalle v. Société it conclusively appears that no such St. Jean Baptiste (1892) 17 R. I. result has followed its enforcement, 680, 16 L.R.A. 392, 24 Atl. 467; the existence of such a provision Pepin v. Societe St. Jean Baptiste will not be held to invalidate the (1902) 24 R. I. 550, 60 L.R.A. 626, proceedings taken under it. Berk54 Atl. 47.

hout v. Supreme Council, R. A. (1899: Texas.-Grand Court, I. 0. C. v. 62 N. J. L, 103, 43 Atl. 1. Johns (1916) Tex. Civ. App.

It is for the court to construe the 181 S. W. 869.

by-laws of a mutual benefit society Washington. — State ex rel. Cicoria on the subject of notice and trials, v. Corgiat (1908) 50 Wash. 95, 96 and to determine whether they conPac. 689.

fer jurisdiction to try the member England. Wood v. Woad (1874) upon the notice shown. Dubcich v. L. R. 9 Exch. 196, 43 L. J. Exch. Grand Lodge, A. 0. U. W. (1903) 33 N. S. 153, 30 L. T. N. S. 815, 22 Wash. 651, 74 Pac. 832. Week. Rep. 709, 2 Asp. Mar. L. Cas. But whether or not a member had 289.

notice of a hearing in consequence A member of a benevolent society of which he was expelled for violatis entitled to notice before expulsion, ing the rules is a question of fact, although the rules of the society do and not of law. Pepin v. Societe St. not provide for notice. Simmons v. Jean Baptiste (1902) 24 R. I. 550, 60 Syracuse, B. & N. Y. & O. & S. R. L.R.A. 626, 54 Atl. 47. Benev. Soc. (1890) 56 Hun, 645, 32 Where the constitution of the suN. Y. S. R. 428, 10 N. Y. Supp. 293; perior body of a benevolent order recFritz v. Muck (1881) 62 How. Pr. ommends a fair hearing to every (N. Y.) 69.

member liable to expulsion, except And he is also entitled to notice where such member has been exbefore suspension, even though the pelled from a subordinate lodge, a by-laws do not provide for notice to member expelled from a subordinate a member of his intended suspen- lodge may be subsequently expelled sion. Seehorn v. Supreme Council, by the superior body without notice. C. K. A. (1902) 95 Mo. App. 233, 68 Pfeiffer v. Weishaupt (1885) 13 Daly S. W. 949.

(N. Y.) 161. It is stated in Grand Grove, U. A.

11. Sufficiency. 0. D. v. Garibaldi Grove (1894) 105 In the absence of any agreement by

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the member or any provision in the benevolent society is illegal, where he charter or by-laws of a benefit society is given only six days' notice of the for a different mode of service of time for the hearing of the charges notice, it should be made personally, against him, instead of the twenty as required at common law, or, if that days' notice required by the by-laws can be dispensed with, then in such of the society. Slater v. Supreme other mode as will be most likely to Lodge, K. L. H. (1898) 76 Mo. App. effect its object. Wachtel V. Noah 387. Widows & Orphans' Benev. Soc. And a three days' notice by mail (1881) 84 N. Y. 28, 38 Am. Rep. 478; is insufficient where the constitution People ex rel. Grunwald v. Independ of the society provides that before a ent Order, A. I. (1895) 13 Misc. 426, member shall be expelled he must be 34 N. Y. Supp. 765.

given at least eight days' notice Mere irregularities in the manner previous to the meeting. People ex of the preparation of the notice to a rel. Grunwald v. Independent Order, member of the trial of charges against A. I. (1895) 13 Misc. 426, 34 N. Y. him do not render his expulsion Supp. 675. unlawful, if he is really afforded an A notice, unaccompanied by a copy opportunity to be heard, and is pres- of the charges, summoning a member ent, and is heard. National Council, of a benefit society to attend a meetK. L. S. v. Turovh (1917) 135 Minn. ing of the board of directors to show 455, 161 N. W. 225.

cause why he should not be expelled And it was held in People ex rel. for a violation of a by-law, does not Keefe v. Women's Catholic Order of comply with the by-laws, which proForesters (1896) 162 Il. 78, 44 N. E. vide that no expulsion shall be made 401, that an irregularity, the nature except on charges preferred, a copy of which does not appear, in the

of which shall be served upon the character of a notice, did not take member so charged. People ex rel. away the jurisdiction of the body in Merscheim v. Musical Mut. Protective a fraternal beneficiary society which Union (1888) 47 Hun (N. Y.) 273. expelled the notified member. It And it would seem from Moore v. further appeared in this case that the National Council, K. L. S. (1902) 65 member received the notice and was Kan. 452, 70 Pac. 352, where the inpresent at the hearing of the charges sufficiency was held waived, that noagainst her.

tice to a member of a fraternal beneThe expulsion of a member of a ficiary society is insufficient, where it benefit society for failure to appear requires him to appear forthwith and and answer charges preferred against is unaccompanied with a copy of the him is legal, where he was personally charges, as provided in the by-laws served with notice to appear and regulating the trial and procedure. with a copy of the charges, although It was stated in Fay v. Supreme he was apparently and actually of Tent, K. 0. T. M. (1902) 38 Misc. 427, unsound mind, but had not been ad- 77 N. Y. Supp. 994, where the only judged a lunatic. Pfeiffer v. Weis- notice given to a suspended member, haupt (1885) 13 Daly (N. Y.) 161. when he took an appeal to the court

But mailing of notice to an insane of last resort of the society, was member of the hearing of charges of that the decision of the lower tribunal fraud in securing membership does would be filed and referred to the not confer jurisdiction upon a mutual Supreme Tent the following July, benefit society to expel him, after that while he might ascertain by other acquiring knowledge of his insanity; means where such hearing was to be at least, unless the by-laws of the held, and at what time in July it society expressly provide for mailed was to be held, it was not a notice notice in such circumstances. Dub- such as justice and fair dealing recich v. Grand Lodge, A. 0. U. W. quired. (1903) 33 Wash. 651, 74 Pac. 832.

Notice of charges preferred against The expulsion of a member of a a member of a benefit society is not

sufficiently shown by the testimony by-laws. The Maccabees v. Sabine of the one who served the notice, (1923) Tex. Civ. App. —, 249 S. W. where he did not know what the notice 1114. was, and served it without reading it

And the insufficiency of the notice to the charged member, and where the

was held in Moore V. National officer of the society who wrote the Council, K. L. S. (1902) 65 Kan. 452. notice was not examined. Downing 70 Pac. 353, to have been waived, v. St. Columba's R. C. T. A. B. Soc. where the member appeared in obedi(1881) 10 Daly (N. Y.) 262.

ence to the notice, and made no obThe right of a member of a mutual

jection to proceeding with the trial, benefit society to notice and opportu- and did not suggest that he was not nity for defense before expulsion

fully informed as to the nature and includes the right to a specification of character of the accusation against the charges preferred against him.

him, or that he desired further time; Pepin v. Societe St. Jean Baptiste

but, on the other hand, intimated that (1902) 24 R. I. 550, 60 L.R.A. 626, 54

he was fully informed of the charges Atl. 47.

preferred, and did not wish

wish for But a member who has actual notice

further time. of the charge against him for which

Failure to notify a member before he is expelled cannot reverse the de

expulsion of the charges against him cision because such charge is not

does not invalidate his expulsion, specifically stated. Ibid. .

where it appears that by his own act III. Waiver.

(confession of crime resulting in his

imprisonment) he has made it imposA member of a benevolent associa

sible for him to have attended before tion may waive the requirements of

the tribunal of the society, if notice the by-laws that he be served, before

has been given to him, and he has expulsion, with notice and a copy of

admitted that the charges against the charges preferred against him.

him are true, and that he has no dePeople ex rel. Baker V. Coachman's

fense to make against them, since he Union Benev. Asso. (1893) 4 Misc.

cannot in any way be injuriously af424, 24 N. Y. Supp. 114.

fected by the expulsion upon such And a member who is not given

charges, without notice and without notice, or served with a copy of the

a hearing. Berkhout v. Supreme charges preferred against him, as re

Council, R. A. (1899) 62 N. J. L. 103, quired by the by-laws of the associa

43 Atl. 1. tion, waives such requirements by voluntarily appearing at the meeting

And where a member of a benefit which tries him, and submitting to the

society confessed in writing to the jurisdiction of the meeting, without

society the truth of the charge premaking any objection upon such

ferred against him which resulted in grounds, or upon the ground that he

his suspension and the imposition of was not prepared to enter upon his

a fine, which he paid, he will not be defense, and by proceeding to defend

heard, upon a claim for sick benefits, himself upon the merits, and speaking

to challenge the validity of the by

law under which he was suspended, in opposition to the resolution of expulsion. Ibid.

upon the ground that it made no Lack of notice may be waived by

provision for a hearing, and that in demanding a vote on the resolution of

fact he obtained no hearing. Volpicelexpulsion. Monette v. La Société de li Societa Vollastese di Mutuo St. Jean-Baptiste (1886) 30 Lower

Soccoroso (1911) 81 N. J. L. 374, 79 Can. Jur. 150, 13 Rev. Leg. 454.

Atl. 1036. The appearance without objection But notice of the charges required by a member at the time and place by the by-laws is not waived by the

he trial is a waiver of his objec- presence of the member, when the motion that he did not receive notice tion is adopted for his expulsion, and of the length of time required by the by his failure to object thereto.

V.

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