Oklahoma Tribe No. 26 v. Musgrove

97 A. 867, 29 Del. 191, 6 Boyce 191, 1916 Del. LEXIS 23

• Court: Superior Court of Delaware
• Decided: April 11, 1916
• Docket: No. 19
• Status: Published

Opinion

Rice, J.,

charging the jury.

Eugenia Musgrove, the plaintiff in this action, seeks to recover from Oklahoma Tribe No. 26, Improved Order of Red Men of Lewes, Delaware, the defendant, for benefits due her from the order upon the death of her husband, George T. Musgrove.

The defendant admits that George T. Musgrove, the late husband of the plaintiff, was at the time of his death on October 9, 1913, a member of the order in good standing, and that there is now due to some one the sum of fifty-one dollars and forty-two cents, after the payment of the necessary funeral expenses.

The plaintiff claims she notified the defendant of her claim for benefits under the constitution and by-laws of the tribe and upon receipt of notice that her claim had not been allowed she gave notice of appeal as required by the laws of the tribe, which notice of appeal was by it ignored, and no action taken thereon.

The defendant claims that it did not receive notice of any appeal, and by reason of the plaintiff’s failure in this respect she has failed to pursue the remedy provided by the constitution and by-laws of the lodge and therefore she is not entitled to recover in this action in law.

The defendant further claims that the plaintiff was not entitled to the benefit fund as the widow of George Musgrove, because she and her husband were not living together at the-time of his death. This is denied by the plaintiff, and she contends that seven weeks prior to his death, he, while in a state of ill health, left their home to go to his old home, Lewes, in an effort to regain his health.

[1] For the plaintiff to recover in this action it is incumbent upon her to prove to your satisfaction that under the laws of the defendant order, she is the beneficiary entitled to the fund payable by the lodge upon the death of her husband, and that she has pursued her remedy within the lodge in the manner provided by the laws of the organization, or was prevented from doing so by the action of the lodge.

[2] Under the laws of the defendant order it is provided that the funeral benefits shall be paid to the widow of the deceased member, providing they were living together at the time of his death.

A man and woman who have been joined together as man and wife by a marriage ceremony, and have consummated the marriage by cohabiting as man and wife, are naturally presumed to. continue living together as such until the contrary appears.

[3, 4] Whether in this case the plaintiff and her husband were living together at the time of his death is a question of fact for your determination from the evidence. The fact that the wife was not at her husband’s bedside at the time of his death, or that she had not seen or been with him for some time prior thereto, would not necessarily mean that they were living apart within the contemplation and meaning of the by-law of the society.

"The constitution and by-laws of the lodge constitute the contract between the parties and govern the case. By them each party is bound. The plaintiff can recover only by showing compliance with the provisions thereof. When the constitution or by-laws of the society provide that the right of a member to benefits shall be ascertained in a particular mode, that mode must be pursued before he can enforce his supposed right in the courts; unless by the action of the society he is prevented from taking such a course.” Del. Lodge No. 1 v. Allmon, 1 Penn. 160, 39 Atl. 1098.

The constitution and by-laws of the defendant lodge are binding upon the plaintiff in this case claiming as the beneficiary of her deceased husband, although she is not a member of the society.

In the case of King v. Wynema Council, 2 Boyce, 255, 78 Atl. 845, the court said:

“The suggestion that the constitution and laws of the defendant order may not be binding upon the plaintiff as the beneficiary of a deceased member is without merit, whatever right she may have arises from, and depends solely upon, the voluntary act of her father in becoming and remaining a member of the defendant order, and she is as much bound as he was.”

It was the duty of the plaintiff to exhaust her remedy within the lodge under the constitution and by-laws of the lodge, and if she has failed to do this, she cannot recover in this action, unless she was prevented from pursuing such remedy by the action of the lodge.

If after considering all the evidence in the case, you believe that the plaintiff and her husband were living together at the time of his death, within contemplation of the laws of the order, and further believe that she pursued and exhausted her remedy under the provisions of the constitution and by-laws of the defendant tribe, provided she was not prevented from taking such course by the action of the tribe, your verdict should be in favor of the plaintiff, otherwise your verdict should be for the defendant.

If you find for the plaintiff, your verdict should be in her favor for fifty-one dollars and forty-two cents, the sum admitted by the order to be due to the beneficiary legally entitled to the benefit fund.

Verdict for plaintiff.