Mullen v. Court Queen City, Order of Foresters

47 A. 257, 70 N.H. 327

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1900
• Status: Published

Opinion

Wallace, J.

The defendants claim the nonsuit should have been ordered because the suit was prematurely brought. They say the plaintiff was required not only to await the action of the finance committee of the lodge on' tins claim, but to exhaust the appeals from their action provided by the order before .he was entitled to bring suit, and that, having failed to do so, he cannot maintain the action. The defendants rely upon the principle that recourse cannot be had to the courts when the laws of the association unequivocally provide a remedy which the parties have agreed to for the grievance complained of, and which has not been pursued and exhausted. Levy v. Iron Hall, 67 N. H. 593; Chamberlain v. Lincoln, 129 Mass. 70; Oliver v. Hopkins, 144 Mass. 175; Jeane v. Grand Lodge, 80 Me. 434; Wood v. What Cheer Lodge, 20 R. I. 795; Ocean Castle v. Smith, 58 N. J. Law 545. in these eases, the laws of the association, which the agreement of the parties made binding upon them, expressly provided an internal tribunal which was to pass upon the liability of the society, at least iu the first instance, and it was held that no civil action could be maintained until the method of redress thus provided by the parties themselves had been invoked and exhausted. But iu the ease at bar, there was no law of the association which required that the plaintiff’s claim should be submitted to the adjudication of the finance committee, or to the determination of the lodge itself, before a suit could he brought in the civil courts. On this ground there was therefore no error in refusing to grant the defendants’ motion for a nonsuit.

There was, however, a provision of the laws of the association that a member eonld not claim weekly benefits while charges were pending against him. The charge tliat the son was fraudulently trying to collect a benefit upon bis wife’s death was pending at the time of his death. Tt had been once tried by a tribunal provided for that purpose by the law's of the association, and upon appeal bad been remanded back for retrial. Until these charges were disposed of, there could be no resort to the civil courts to recover sick benefits by the plaintiff’s son if lie were living. Ido bad agreed that his right to a sick benefit should depend upon the fact that no charges were pending against him, that such charges should be heard and tried by the tribunals of the association provided for that purpose, and that no resort should be had to the courts until this remedy was exhausted. The plaintiff’s rights in this respect were the same as those of his son. it does not appear that the defendants were unfairly exercising this right to have tbis matter beard by tbe tribunal of the society. There was no similar provision in the law's of the association relating to funeral benefits, and tbe fact that charges were pending against the son does not affect the plaintiff’s right to recover that benefit. The plaintiff can recover the funeral benefit, but not tbe sick benefit.

Exception sustained.

Peaslee and Young, JJ., did not sit: the others concurred.