AlleN, J\,
after stating the case: The question involved in this case is of general importance, and the principle announced will determine, in this State, the right of all benefit societies and fraternal orders, which provide for the payment of benefits to sick or disabled members, to establish, within the society or order, some tribunal with power to investigate the fact upon which the right to the benefit may depend, and whose decision shall be final, unless impeached for fraud.
We cannot declare that the decision of such a tribunal is binding upon a member who belongs to a fraternal order, and refuse to enforce it, on substantially the same facts, because it is invoked in behalf of the relief department of a railroad.
[198]*198Tbe principal contentions of tbe plaintiff, assailing tbe validity of tbe decision of tbe advisory committee, are that it is practically an arbitration; that on tbe facts developed a property right is involved; that an agreement to submit sucb a right to arbitration in advance of tbe controversy is invalid, because it is an agreement which ousts tbe courts of their jurisdiction, and that tbe advisory committee was not fairly constituted.
Tbe defendant replies that if tbe action of tbe advisory committee is to be governed by tbe strict rules of an arbitration, no property right was submitted to tbe committee, but only tbe ascertainment of a single fact, that tbe committee was impartially constituted; and if not, that tbe plaintiff admitted bis claim with full knowledge of tbe facts, and that there has been an award, which is final.
Tbe defendant further says that tbe principles relied on are not applied, without qualification, in behalf of a member of an organization, who acquires bis property right under and by virtue of its regulations.
There is some difference of opinion as to tbe motive behind tbe adoption of tbe rule that an agreement in advance of a controversy to submit all questions of law and fact to arbitration is not enforcible, some attributing it to tbe jealousy of tbe courts and a desire to repress all attempts to encroach on tbe exclusiveness of their jurisdiction, and others to an aversion, from reasons of public policy, to sanction contracts by which tbe protection which tbe law affords tbe individual citizen is renounced (Canal Co. v. Coal Co., 50 N. Y., 258), but tbe tendency of tbe later decisions is to relax tbe rule.
In tbe case from New York, tbe Court says:
“An agreement of this character induced by fraud, or overreaching, or entered into unadvisedly through ignorance, folly, or undue pressure, might well be refused a specific performance, or disregarded when set up as a defense to an action. But when tbe parties stand on an equal footing, and intelligently and deliberately, in making their executory contracts, provide for an amicable adjustment of any difference that may arise, either by arbitration or otherwise, it is not easy to assign, at this day, [199]*199any good reason wby tbe contract should not stand, and tbe parties made to abide by it and tbe judgment of tbe tribunal of tbeir cboice. Were tbe question res nova, I apprehend that a party would not now be permitted, in tbe absence of fraud or some peculiar circumstances entitling him to relief, to repudiate bis agreement to submit to arbitration and seek a remedy at law, when bis adversary had not refused to arbitrate, or in any way obstructed or hindered tbe arbitration agreed upon. . . . The better way, doubtless, is to give effect to contracts, when lawful in ■ themselves, according to tbeir terms and tbe intent of tbe parties, and any departure from this principle is an anomaly in tbe law, not to be extended or applied to new cases unless they come within tbe letter and spirit of tbe decisions already made. Tbe tendency of tbe more recenc decisions is to narrow rather than enlarge tbe operation and effect of prior decisions, limiting tbe power of contracting parties to provide a tribunal for tbe adjustment of possible differences without a resort to courts of law; and tbe rule is essentially modified and qualified.”
This is in line with tbe statement of Chapman, J., in Hood v. Hartshorn, 100 Mass., 117, that “judicial tribunals are provided by tbe Government to enable parties to enforce their rights when other means fail, but not to binder tbem from adjusting tbeir differences themselves, or by agents of tbeir own selection,” and with tbe remark of Pollock, B., in Dawson v. Fitzgerald, 1 Ex. D., 257, that “it bas been shown, not only by decision, but by the legislation of late years, that tbe same pious reverence is not felt for litigation in an open court that was felt in tbe olden time.”
There would appear to be some contradiction for tbe same Court to say that “Tbe settlement of controversies by arbitration is looked on with great favor by the courts” (Hurdle v. Stallings, 109 N. C., 6), and then refuse to permit tbe members of an organization to agree upon a plan for determining when a member is able to return to bis work.
The rule as to agreements to arbitrate bas been modified from time to time until now it is generally accepted that it is competent to contract that tbe amount of damages which may [200]*200be recovered, or the existence of any fact which may enter into the right to recover, shall be submitted to arbitration, provided the right of action is not embraced in the agreement.
In the leading English case of Scott v. Avery, 5 H. L., 811, it was held that a provision of a mutual insurance company was valid, “that the sum to be paid to any insurer for loss should, in the first instance, be ascertained by the'committee; but if a difference should arise between the insurer and the committee, ‘relative to the settling of any loss, or to a claim for average, or any other matter relating to the insurance,’ the difference was to be referred to arbitration,” and Lord Coleridge thus speaks of this provision: “The principle of law which is relied on by the plaintiff in error is agreed on. The difference between the parties is upon the question whether it governs the present case, and this must be decided by determining the true construction of the agreement. If two jmrties enter into a contract, for the breach of which in any particular an action lies, they cannot make it a binding term that in such event no action shall be maintainable, but that the only remedy shall be by reference to arbitration. Whether this rests on a satisfactory principle or not may well be questioned; but it has been so long settled that it cannot be disturbed. The courts will not enforce or sanction an agreement which deprives the subject of that recourse to their jurisdiction, which has been considered a right inalienable even by the concurrent will of the parties. But nothing prevents parties from ascertaining and constituting as they please the cause of action which is to become the subject-matter of decision by the courts.”
Again, it is said in Assurance Co. v. Hall, 112 Ala., 323: “The principle is that when the agreement to arbitrate includes the whole subject-matter of difference, so that the right of the party to resort to the courts of his country for the determination of his suit or claim is absolutely and effectually waived, such an agreement is against public policy and void. We adhere to that conclusion. The courts clearly distinguish between an agreement which refers to arbitration the extent or amount of damages to be recovered, but leaves the parties free to have the right to recover or liability of the other party [201]*201determined by tbe courts, and those agreements which refer to arbitration the- authority to determine the right of the one to recover or the liability of the other. The former are upheld and enforced, while the latter are declared to be against public policy and not binding.”
In Holmes v. Rickett, 56 Cal., 313, the case from New York (Canal Co. v. Coal Co., supra,) and Scott v. Avery, supra, are cited with approval, and particularly the statement in the latter case: “But nothing prevents parties from ascertaining and constituting as they please the cause of action which is to become the subject-matter of decision by the courts.”
The original doctrine, with its modifications, is well summed up by Justice Manning in Kelly v. Trimont Lodge, 154 N. C., 100: “Our Court has uniformly held to the doctrine that when a cause of action has arisen, the courts cannot be ousted of their jurisdiction by agreements, previously entered into, to submit the liabilities and rights of the parties to the determination of other tribunals named in the agreement; but it has been also generally held that the agreement to submit the particular question of the amount of loss or damage of the assured under an insurance policy is not against public policy and is sustained. That is simply a method for the ascertainment of a single fact, and not the determination of the legal liability of the insurer,” citing Mfg. Co. v. Assur. Co., 106 N. C., 28; and in Braddy v. Ins. Co., 115 N. C., 354, Justice Avery says the proposition is well settled that an agreement to submit to arbitration the single question of the amount of loss by fire is valid.
Under these authorities, and particularly under the declaration of our own. Court, and treating the agreement as one for arbitration, pure and simple, the defendant might well contend that its liability to pay benefits being admitted, when the plaintiff is under disability, that it was competent for the parties to agree in advance that the single fact of disability should be determined by arbitration.
But the case is stronger for the defendant than this, as the plaintiff has voluntarily submitted his claim to the arbitrament of the advisory committee, and an award has been rendered against him.
[202]*202Tbe authorities seem to agree that although, an agreement to arbitrate the entire controversy is not enforcible, and that prior to the award either party may revoke the agreement, that if he fails to do so, and enters upon the arbitration, and an award is made, he is bound.
In Tobey v. Bristol, 23 Fed. Cases, 1321, Judge Story, after discussing the power of revocation, says: “But where an award has been made before the revocation, it will be held obligatory, and the parties will not be allowed to revoke it, and the courts of law, as well as of equity, will enforce it.”
The same principle is declared by Justice Walher at the last term, in Williams v. Mfg. Co., 154 N. C., 208, in which he says: “After the arbitrators have acted and rendered an award, the case is yery different. Their decision (that of the arbitrators) is binding upon the parties, and can be successfully impeached only upon the grounds which would invalidate any other judgment. This distinction between a mere agreement to submit and a submission consummated by an award is uniformly recognized by the authorities.”
Nor can the plaintiff now object that the members of the advisory committee were interested, of partial, if such is the fact, because he knew how it was constituted when he became a member of the department, and at the time he submitted his claim to them.
As was said by Justice Shepherd in Pearson v. Barringer, 109 N. C., 398: “It is well settled that parties ‘knowing the facts may submit their difference to any person, whether he is interested in the matters involved (Navigation Co. v. Fenton, 4 W. and S. (Pa.), 205), or is related to one of the parties; and the award will, be binding upon them.’ (6 Wait’s Act. and Def., 519; Morse on Arbitration, 105.) But if the submission is made in ignorance of such incompetency, the award may be avoided. No relief, however, will be granted unless objection is made as soon as the aggrieved party becomes aware of the facts; and if after the submission he acquires such knowledge and permits the award to be made without objection, it is treated as a waiver, and the award will not be disturbed. Davis v. Forshee, 34 Ala., 107. ‘A party,’ says Morse on Arbitration [203]*203(supra), ‘will not be allowed to lie by after be bas attained tbe knowledge and proceed witb tbe bearing without objection, thereby accumulating expense and taking tbe chance of a decision in bis favor, and then, at a later stage, or after a decision bas been or seems likely to be rendered against him, for tbe first time produce and urge bis objection.’ From these and other authorities it would seem clear that when one seeks to impeach an award be must show that be made objection as soon as be discovered tbe disqualifying facts.”
If, therefore, we applied tbe rules governing arbitration and awards, we would bold upon tbe facts in this record that it was competent for tbe parties to agree in advance to submit to arbitration tbe single question of the ability of tbe plaintiff to return to his work, and that an award rendered on such an agreement would be valid, when free from oppression or fraud.
Tbe rights of tbe parties cannot, however, be determined strictly upon tbe principle governing arbitrations, because tbe plaintiff acquires bis right to tbe benefits be claims under tbe rules of tbe relief department, and be bas by contract attached to tbe enjoyment of these benefits tbe condition that be will abide by all reasonable regulations.
There is no question of negligence involved, and tbe plaintiff does not say that tbe provisions of the relief department are against public policy and void. On tbe contrary, be demands relief because be is a member of tbe department and under its provisions. He says that, having contributed dues amounting to $6.15 before be was accidentally injured, and having received benefits amounting to $673.50 on account of bis injuries, that when tbe department, upon an appeal by him, in accordance witb tbe by-laws, decides that be is able to return to work, be may refuse to do so, and that tbe regulations providing for a tribunal to decide this single question bas no binding force.
Tbe authorities upon this question are in much conflict.. All seem to agree that when tbe regulation of an organization relates to its internal policy, or to a question of membership, that tbe action of tbe organization, according to tbe regulations, is, in tbe absence of fraud, conclusive; but there is a difference of opinion as to what is a property right and as to tbe effect of tbe regulation when a property right is involved.
[204]*204Some courts bold that when a property right is involved, the member must first seek redress inside of the order, and that, having done so, he may then resort to the courts. Others hold that if there is no inhibition against resorting to the courts, he may do so in the first ins'tance. Others, that he must resort to the order first, if the regulations so require, and then to the courts, although the regulations say that the decision by the tribunal in the order shall be final. And others, that the decision rendered according to the regulations of the order is final and conclusive. Vandyke's case, 3 Whar. (Pa.), 312; Barker v. Great Hive, 135 Mich., 499; Von Poucke v. St. Vincent, 63 Mich., 381; Ry. Ben. Assn. v. Robinson, 147 Ill., 159; Cotter v. A. O. U. W., 23 Mont., 90; Loeffler v. M. W. of Am., 100 Wis., 85; Rood v. Ry. Ben. Assn., 31 F. R., 62; Osceola Tribe v. Schmidt, 57 Md., 105; Anacosta Tribe v. Murbach, 13 Md., 91; Sanderson v. Railroad Trainmen, 204 Pa. St., 183; Robinson v. Templar Lodge, 117 Cal., 371; Lodge A. O. U. W. v. Grogan, 44 Ill., 111; Knights of Pythias v. Wilson, 66 F. R., 785.
In Vandyke’s case the charter of a private corporation provided that if any member should be found breaking the rules of the society he should be served with a notice to attend to answer at the next stated meeting, after which a decision should be made by ballot, and if two-thirds considered him guilty, he should be dealt with agreeably to the by-laws. The by-laws provided that no member should be entitled to receive any benefit from the society whose complaints are the result of intoxication, etc. A member having been expelled by the requisite majority, on the ground of intoxication, after due notice, etc., he brought an action in the court of common pleas to recover the allowance granted to disabled members, and it was held that the regularity of the proceedings to expel him could not be inquired into in that action, and that the court had no jurisdiction to compel payment of the allowance.
Chief Justice Gibson, who wrote the opinion, says: “Into the regularity of these proceedings it is not permitted us to look. The sentence of the society, acting in a judicial capacity and with undoubted jurisdiction of the subject-matter, is not to be questioned collaterally, while it remains unreversed by superior authority.”
[205]*205It will be noted that in this case tbe tribunal provided in tbe order decided tbe question of intoxication; and its decision was beld to be conclusive, and upon it tbe right to benefits was denied.
In Sanderson v. Brotherhood of Trainmen, supra, speaking to tbe same question, tbe Court says: “In tbe case at bar tbe plaintiff’s statement clearly shows that tbe constitution of tbe order provides a tribunal to decide tbe very question now in controversy in this case, to wit, whether or not tbe plaintiff’s claim amounted to total disability. In accepting tbe certificate tbe plaintiff agreed, with tbe other members of tbe beneficial order, that be would submit this question to tbe tribunal so constituted. It was a tribunal of bis own choice. It was. doubtless provided for tbe express purpose of preventing litigation and thereby to prevent tbe funds of tbe order from being taken and used in defending suits. It is to tbe interest of every member of tbe order that this regulation should be enforced. In our opinion, tbe decision of such tribunal is conclusive upon tbe • plaintiff, and tbe merits of tbe decision of such tribunal cannot be inquired into collaterally, either by action at law or any other mode.”
In tbe ease of Anacosta Tribe of Bed Men, supra, the right of a member to sick benefits was involved, and after a decision against him in tbe order, be brought action to recover the benefits. Tbe Court says: “Tbe appellee, by becoming a member, assented to be governed by tbe Tribe and Council, according to tbe regulations, and it follows that be was bound by their application and construction in bis own case. It is provided that tbe Tribe shall determine matters of this kind, and tbe decision, on appeal, made final. These are private beneficial institutions operating on the members only, who for reasons of policy and convenience, affecting their welfare and perhaps their existence, adopt laws for their government, to be administered by themselves, to which .every person who joins them assents. They require the surrender of no right that a man may not waive, and are obligatory on him only as long as be chooses to recognize their authority. In tbe present instance tbe party appears to have been subjected to tbe gen[206]*206eral laws and by-laws according to tbe usual course, and if tbe tribunal of bis own choice bas decided against him, be ought not to complain. It would very much impair tbe usefulness of such institutions if they are to be harassed by petty suits of this kindand this, probably, was a controlling consideration in determining tbe manner of assessing benefits. and passing ujion tbe conduct of members. Tbe very point arose in Vandyke's case, 2 Wbar., 309, where (Gibson, Gh. J., delivering tbe opinion of tbe Court) it was held that an action did not lie to recover benefits, upon grounds that we deem altogether satisfactory.”
This and' Vandyke's cas'e were approved in Osceola Tribe v. Schmidt, 57 Md., 105.
In Van Poucke v. St. Vincent Society, supra, plaintiff sued tbe defendant, a mutual benefit and cooperative insurance company of which be was a member, for money claimed to be due bim for a “sick benefit.” Tbe by-laws of tbe company provided for a “sick committee,” whose duty it should be to investigate and determine whether a member was entitled to such benefit, whose decision was to be final,' and tbe committee to be sole “deciders” of tbe question. After plaintiff bad received assistance for a time, be was cited before tbe committee, and after a hearing they decided that be was not entitled to receive any further benefits on account of bis injury, of which decision be was duly notified, and it was held that tbe action of tbe committee was final, tbe Court saying: “It is necessary that there should be some mode of determining tbe question of when relief should be given and denied, and tbe method provided in tbe by-law seems well adapted to tbe circumstances and needs of such society. There is nothing oppressive in-the terms of tbe by-law, and it contains nothing which tbe policy of tbe law forbids. If it is enforced in good faith and with impartiality, which tbe members pledge themselves to do, it must result in benefit to sick members, and at tbe same time protect tbe funds of tbe society from depletion by tbe undeserving.”
Tbe same principle is declared in Barker v. Great Hive, 135 Mich., 502.
[207]*207The question was considered by the Circuit Court of Appeals in Knights of Pythias v. Wilson, supra, and it was there declared: “The decided weight of authority is that a member of a mutual benefit society must resort, for the correction of an alleged wrong done to him as such member, to the tribunals of the society, and when the proceedings are regular, the action of the society is conclusive, and cannot be inquired into collaterally.”
We will not quote further from the cases cited, and there are others to the same effect, but they sustain fully the contention of the defendant, that it was the duty of the plaintiff to seek redress inside the department, and that the decision of the advisory committee, upon his appeal, is conclusive upon him.
The doctrine seems to us to be reasonable and just, and necessary to the maintenance, in benefit societies and fraternal orders, of provisions conferring benefits on sick or disabled members.
If it should be held otherwise, such societies would be subjected to litigation each time a member was dissatisfied, and funds raised for wise and beneficent purposes would be wasted.
This is not in conflict with the opinion in Kelly v. Trimont Lodge, 154 N. C., 98. In that case it is stated that the plaintiffs were entitled, under the rules and regulations, to the sum demanded, and the defendant denied the right of action. It was held that an agreement to submit the whole controversy to arbitration was not binding; but it is distinctly stated that it was competent to agree that the decision of a single fact, such as we have here, could be submitted to a tribunal within the order.
When a member submits his claim to the committee he is. entitled to a hearing, and is not concluded by its action if it is fraudulent or oppressive, of which the facts on this record furnish no evidence.
There was error in refusing to give the instruction requested by the defendant, and a new trial is ordered.
New trial.