Murphy v The Monongahela Connecting Railroad Co.

It is apparent that the Act in question has made no specific provision for the safe-guarding of the interests of the defendant in a case presenting the facts that are to be found in this appeal.

We are, however, of opinion that the omission of such a provision can not be held to deprive defendant of the protection which the law, considered as a whole, intended to throw around the employer.

In the recently decided case of Lovasz v Carnegie Steel Co., 266 Pa., 84, it was held, that, although the Workmen's Compensation Act was silent upon the subject, an attempt to commute compensation without bringing minor heirs upon the record would not be permitted. The Supreme Court in that case (Opinion, p. 87) says: "Wherever the Act is silent with respect to the adjustment of any particular claim or interest in a fund allowed by it, or the orderly administration of this fund, to preserve such interest, the law, as it previously existed, will step in and fill the gap which might otherwise occur."

We are convinced that appellant is entitled to be protected by some proper form of indemnity which will safeguard its rights, before it can be required to pay over to the claimant the sum awarded her as commutation. The appeal must therefore be sustained, and the award of the Compensation Board set aside.

Barndollar v Supreme Council of the Royal Arcanum.

Assumpsit-Benefit Certificate-Failure to Pay Dues-Tender-Terms of Payment Acceptance.

In assumpsit on a benefit certificate a verdict was directed in favor of the defendant where the beneficiary's deceased husband, being in default of his monthly dues, it was sought to prove that when her husband in her presence had told the collector that he had the money to pay what was due but that the collector had suggested taking out a new policy and the two had discussed other terms to be accepted or refused at a later date and nothing more had been done in the matter prior to the insured's death, this could not be adjudged a tender so that the case could not be allowed to go to the jury.

Sur Motion for Judgment for Plaintiff N. O. V. No. 2180 October Term. 1917. C. P. Allegheny County.

Prichard & Trent, for plaintiff.

Langfitt & McIntosh, for defendant.

SHAFER, P. J., December 10, 1919.-The action is upon a benefit certificate. issued by the defendant corporation, which is a beneficial order. The plaintiff put in evidence a benefit certificate for $3,000.00, payable to her at the death of her husband, if in good standing in the defendant society at the time of his death. The by-laws of the order provide that each member should pay to the collector of his Council, twelve regular assessments in each calendar year, one of which shall be due on the first day and payable before 10 o'clock P. M. on the last day of each calendar month, and that any member failing to pay any regular assessment before the time prescribed for such payment shall stand suspended from the Order and all benefits therefrom. It was not claimed by plaintiff that her husband had actually paid his November assessment before 10 o'clock P. M. on November 30, and it appeared by the uncontradicted evidence that he was in a few days thereafter declared to be suspended. Nor is it claimed that

Barndollar v Supreme Council of the Royal Arcanum.

any time after that, before the time of his death in the following February, did the member pay or offer to pay his dues nor take any steps to have the suspension removed. The case of the plaintiff depends entirely upon her own testimony as to what took place sometime during the month of November when she accompanied her husband to see the collector of his lodge. The monthly rate had been raised from time to time since the issuance of the certificate and an additional raise had been made immediately before this. She testifies that her husband and the collector had a conversation in a bank where the collector was employed, and that she heard her husband say to the collector that he had come to have things settled up and that he was anxious to do so at that time, and that he had the money to pay him what was due, and tendered the money what was due and whatever he would have to pay at that time, and that the collector suggested that he take out a $500.00 policy, which was an option for the older men who could not pay the $23.00 a month, and that Mr. Barndollar was not willing to do that and that his objection was that he would have to go through the same preliminaries as he did when he joined the lodge, and Mr. Little told him that that is what he would have to do. When asked if Mr. Little took the money that Mr. Barndollar offered she said he had the money and tendered the money and wanted to pay whatever was due and tried to make arrangements on the new assessment, and his idea was that he wanted to pay, and he asked Mr. Little if he could not arrange for him to pay eleven and a half, half of the assessment, and carry his $3,000.00 policy, with the understanding that the other eleven dollars and a half should be deducted at his death, on the new policy, and that Mr. Little told him that he had better think it over, that that could not be done without a new policy, and told him to go home and think it over. On cross-examination she says that her husband and the collector were talking about the new rate which went into effect in December and did not apply to November, that it was that new rate that her husband was anxious to fix up and also his $8.00 assessment for November; he was anxious to have it paid and had the money to pay it, and when asked why Mr. Little did not receive the $8.00 for November she said: "Mr. Little did not want to do anything in the matter at all; he wanted to fix it up the other way." This testimony is relied upon by the plaintiff to prove a tender of the assessment for November to the collector and a refusal by him to receive it. We are clearly of the opinion that it could not be allowed to go to the jury for that purpose, as it shows no elements of a tender.

We are therefore of the opinion that the direction to find a verdict for the defendant was right, and the motion is therefore refused.

Macioce v St. Mary's Beneficial Society.

Mandamus

-Beneficial Society---Expulsion of Memberpliance With--Jurisdiction of Civil Courts.

On a writ of mandamus relator's prayer to be restored to membership in a beneficial society was refused and judgment entered for defendant where relator had not taken an appeal to the society as provided by its by-laws after his expulsion in that he could not seek redress in the civil courts until after he had complied with the laws of the society.

Mandamus. No. 950 April Term, 1920. C. P. Allegheny County.

Edward G. Coll, for plaintiff.

Peter M. Cancelliere, for defendant.

EVANS, J., June 28, 1920.-The plaintiff presented his petition alleging that he was a member in good standing of the defendant society from the 27th of September, 1908, up until the 4th day of January, 1920, when he was peremptorily expelled without any just cause or reason, and prayed for a writ of mandamus directed to said society, commanding it to reinstate him to all the privileges and benefits of membership in its body. The respondent filed an answer raising questions of fact, and the case comes before this court for trial without a jury, under the provisions of the Act of June 4, 1915.

There was some difficulty arose between the relator and some of the officers of the respondent society at a meeting of the administrators of the society on the 19th of December, 1919, and the relator was reprimanded on that date and suspended upon that occasion. Subsequently, at the same meeting, a resolution was passed by the administrators to prefer charges against the relator, and this was done at the meeting on the 28th of December, and on the 4th of January the matter was brought before the regular meeting of the society, and the charges preferred, and in accordance with Article 4 of Section 5 of the By-laws of the society, a jury of twenty members was appointed by the president to try the relator on the charges preferred against him, and they adjourned to meet on the 18th of January. They met on the 18th of January, the relator was not present, had received no notice to be present, and on a statement of charges that were made against the relator by the president of the society the jury voted his expulsion. No testimony was taken at this meeting, and no competent evidence to prove the guilt of the accused, nor was he notified to attend the meeting. Two of the original twenty jurors appointed to try the case were not present at this meeting of January 18th, and two others were substituted. Some of the original jury of twenty were not present at the meeting of January 4th and had not heard the charges preferred at that meeting or any evidence taken on the subject. The by-laws on the subject of the expulsion of members, Article 4, Section 5, provides: "The expulsion of a member is pronounced by a jury of twenty members selected to act as such upon the direction of the administrative officers;" Article 6 of the same section: "No penalty can be pronounced unless the member is first given an opportunity of a hearing to defend himself. The member who is sentenced to a suspension or to expulsion, can appeal to the society, in which event there will be elected by a majority vote thirty members, always excluding those who previously served as jurors on the jury which pronounced the expulsion, and excluding those who to the third degree are related to the accused." The accused did not take the appeal as provided in Article 6 of Section 5 of the by-laws.

The objection is made on the part of the respondent that this application to the court is premature; that the relator should have first exhausted his remedies within the society and that contention appears to be correct.

Macioce v St. Mary's Beneficial Society.

*

In the case of Wick v The Accident Order, 21 Sup. Ct., 507, the plaintiff was a member of the accident order and had received an injury, and on making claim to the society for accident benefits he was told by one of the officers of the company that the company was not liable to him for benefits as he had voluntarily put himself in a dangerous position. On October 29, by letter, the secretary of the company notified the plaintiff that "The next step for you to take, according to the laws of this order and which are a part of your contract of membership, is to appeal your claim to the grand councilor within thirty days," and the Superior Court, in commenting upon that said: "This he did not do, and his claim is impaled on a technicality which could have been avoided by literally complying with the by-laws of the association regulating appeals. ** The laws of the association, of which the plaintiff was a member, provided a course which must be pursued and exhausted, and unless so dealt with, the claimant is without remedy." In a somewhat similar case before the Supreme Court, Beeman v Supreme Lodge, 215 Pa., 627, that court says, in passing upon the question of whether the plaintiff should have exhausted his right of appeal within the society before applying to the court to redress his grievances: "The by-law in question does not deprive the beneficiary of her right to enforce her claim in a court of law, but provides that before any suit at law or in equity shall be instituted, the remedies provided by the society shall first be exhausted. This is a reasonable regulation for the settlement of disputes arising in the society, and under the cases above cited is binding upon the members." In the case of German Reformed Church v Seibert, 3 Pa., 282, was a case where the plaintiff had been expelled from the church by which he had been a member, and he failed to take his appeal from the action of the congregation as provided by the laws of the church, by the Sixth Article: "That when any person may think himself aggrieved by the decision of a lower judicatory, he has a right to appeal to a higher; and whatever is concluded in such judicatory by a majority of votes, is valid and binding, unless it can be shown to be contrary to the word of God, and the constitution of the church. If, therefore, the relator is injured by the decree of the consistory, his remedy is by appeal to a higher ecclesiastical court, which no doubt (and it is indecorous to suppose otherwise) will afford him redress, by reversing whatever may have been done by the inferior court, inconsistent with the canons of the church. That the power of the classis and synod is advisory only, matters not; as we cannot suppose their decision will be disregarded, and if it should be, it will then be time enough to scek redress from the civil authorities."

Whatever may be the wrongs done by the society against the relator, he is not in position to ask this court to redress him now. He must first exhaust his remedies within the society and then if he fails to get justice, he may apply to the civil authorities for redress.

And now, June 28, 1920, this case having come on to be heard before this court without a jury, it is ordered and adjudged that judgment be entered in favor of the defendant.

Marloff v Kastl.

Principal and Agent-Scire Facias sur Mortgage Payment-Power to Collect Principal-Evidence-New Trial.

On a scire facias to collect the amount of a mortgage given by defendant, it was claimed payments had been made for interest as well as principal to an agent who embezzled these payments. An offer to prove a general agency for the collection of rents, interest and principal on mortgages was held too broad, and a new trial was granted where the evidence showed an agency to collect rents and interest only. This would not necessarily embrace an agency for collecting the principal of mortgages.

Sur Motion by Plaintiff for a New Trial. No. 2227 January Term, 1918. C. P. Allegheny County.

George H. Quaill, for plaintiff.

Elias Sunstein, for defendant.

HAYMAKER, J., May 10, 1920.—This is a scire facias to collect the amount of a mortgage given by the defendants to the plaintiff on November 10th, 1905, to secure the payment of a bond of $1,400.00. Before this action was brought the defendants had fully paid the amount of the bond, and the only question in the case was whether the payments were made to the legally constituted agent of the plaintiff. The payments in question were made to Walter F. Weitershausen, a real estate agent, and were by him embezzled. The question was whether Weitershausen was authorized by the plaintiff to receive the principal of this mortgage. There was evidence on the part of the defense that the plaintiff authorized and directed the defendants to pay interest and installments of principal to Weitershausen, and no objection could be made to that evidence; but we permitted the defendants to prove, over plaintiff's objection, that Weitershausen had been, for many years before and was at that time the agent of the plaintiff in the collection of his rents, and the interest on this, as well as on various other mortgages held by the plaintiff. In this we think we were wrong. While the defendant made a very broad offer to prove the general agency of Weitershausen, it was followed by no such evidence, and at best showed only a general agency in the collection of rents and interest on mortgages, which is not proof of an agency to collect the principal of mortgages. We think the following cases are authority for this position: Williams v Walker, 2 Sand. Ch. Rep., 359; Curtis v Drought, 1 Moll, 487; Kent v Thomas, 1 Murl. & Norm., 472; Wilkinson v Candlish, Extr., 5 Ex. Rep., 90; Smith, Extr. v Kidd, et al., 68 N. Y. Rep., 130; Slaymaker, Trustee v Herr, 12 Lanc. L. R., 342; Cowden, to use v Beechler, et al., 6 C. C., 8; and Ely v Lamb, 10 C. C., 209.

If the security held by Marloff had been in the possession of Wietershausen when the installments of principal were paid, a more serious question would have been in the case. Mynick v Bickings, 30 Super. Ct., 401; Eli v Lamb, supra; Crowden v Beehlar, supra; Bryant v Hamlins, Exrs., 3 Dist. Rep., 385; and Haines v Sohlmann, et al., 25 N. J. Eq., 179.

The authorities cited in the brief of counsel for the defendants, handed us this day, have no application to the case in hand.

The motion for a new trial is granted.