Osceola Tribe, No. 11 v. Schmidt

Grason, J.,

delivered the opinion of the Court.

This suit was instituted by August Schmidt, to recover sick benefits from the appellant, alleged to be a corporation under the laws of this State, of which he was a. member. The proof shows that he was sick for some time, and that the appellant refused to pay him the sum of three dollars a week, during his sickness, which he-alleged to be due him under its laws.

*105 The by-laws of the appellant, and the charter and constitution of the Grand Tribe of Maryland, were offered in evidence. The first Article of the former provides that it shall work under the jurisdiction of the Grand Tribe of Maryland. The sixth Article provides that whenever a member has cause of complaint against his Tribe on questions which relate to his enjoyment of benefits, he must first apply to the Grand Tribe of Maryland, and if its decision does not satisfy him, apply to the Grand Tribe of the United States ; and if he neglects to pursue this course, and brings a suit in a tribunal outside the Order, he shall be subject to expulsion. The proof shows that Schmidt, after the appellant declined to pay him benefits, did apply to the Grand Tribe of Maryland, and after-wards from its decision appealed to the Grand Tribe of' the United States, which affirmed the decision of the Grand Tribe of Maryland. He afterwards brought this suit. These proceedings were specially pleaded and relied upon as a bar to this action, and are conclusive against the appellee’s right to recover.

It was decided in Vandyke’s Ga.se in the Supreme Court, of Pennsylvania, 3 Wharton, 312 , that where a beneficial society had decided under its by-laws, that a member was not entitled to benefits, the decision was conclusive upon him, and Chief Justice Gibson, who delivered the opinion of the Court, 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.” He also says: “The society never consented to expose itself to the costs and vexation of an action for every weekly pittance that might be in arrear.” But the question has been set at rest in this State by the decision of this Court, in the case of Anacosta Tribe of Red Men vs. Murbach, 13 Md., 94 and 95. That also, was- *106 a suit to recover benefits. The by-laws of that society provided that questions as to benefits should be decided by the Tribe, and the decision of the Tribe being against his right to receive them, he brought suit to recover them, and upon appeal, this Court said, “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 so long as he chooses to recognize their authority. In the present instance, the party appears to have been subjected to the general laws and bylaws according to the usual course, and if the tribunal of his own choice has decided against him, he ought not.to ■complain. It would very much impair the usefulness of such institutions, if they are to bo harassed by petty suits ■of this kind, and this, probably was a controlling consideration in determining the manner of assessing benefits, and passing upon the conduct of members.” The Court refers to Vandyke’s Case, and adopts the views of ■Chief Justice G-ibsost, as “altogether satisfactory.”

As the appellant’s pleas, seven to ten inclusive, and its additional pleas raise the question, we have determined, it is only necessary to say, that upon the demurrer to the third, fourth, fifth and sixth pleas, to which it was sustained, there should have been judgment for the appellant, because the declaration was defective in substance, in not stating any cohsideration moving from the appellee' to the appellant, whereby the latter became liable to pay benefits to the former, and did not state from whom he was entitled to receive benefits, nor what amount, nor the length of time he was sick; it being the established rule, upon a demurrer, that the Court, notwithstanding there may be a defect in the pleading demurred to, will give *107 judgment against the party, whose pleading is first defective in substance.

(Decided 30th June, 1881.)

The pleas, raising the points we have decided in this case, it was contended by the counsel of the appellee, were pleas in abatement, and therefore not pleaded in time. These pleas do not point the appellee to a different form of action, or to another mode of proceeding, hut present a flat bar to any suit in any form in which any recovery could he had.

From what we have said, it follows that there was error in granting the appellee's prayer, which was also had, because by it the jury were instructed, if they found the facts therein slated to he true, that the appellee was entitled to recover three dollars and fifty cents per week, while the declaration only claimed three dollars per week, and as the appellee can, in no event, recover in this suit, the judgment appealed from will he reversed without awarding a new trial.

Judgment reversed.