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master, charges were preferred against him, lated to the adoption of the resolution of by two members of one of the local lodges the grand lodge at Hot Springs calling the for alleged personal and official misconduct, next meeting to be held at Pine Bluff was and Newton was put put upon trial before separately heard by the Jefferson chancery the executive board of the District Grand court on May 18, 1921, on oral testimony, Lodge on these charges and was acquitted. and a decree was rendered finding that the The individuals who preferred the charges next ensuing meeting to be held at Pine took an appeal to what is termed the "Sub- Bluff in August, 1921, had been fixed by rescommittee of Management," which seems toolution adopted by the grand lodge at Hot be, under the by-laws of the national organ- Springs in accordance with the laws of the ization, a governing board of the national association and dismissing the cross-comorganization. The subcommittee of manage- plaint of appellants for want of equity and ment entered an order finding Newton guilty restraining them from "further interfering of the charges and removing him from of- with Thomas L. Newton as grand master fice. Another order made by the subcom- in the discharge of his duties as such and mittee of management appointed J. I. Blake-calling the grand lodge to convene in Pine ly, one of the appellants, as district grand Bluff, Ark., in 1921.” master in the place of Newton. The order There was no separate appeal from that contained a specification that Blakely's ten- decree, but another decree was rendered by ure should extend no longer than to the next the court on January 25, 1922, restraining meeting of the Grand Lodge of Arkansas, appellants from interfering with Newton which, under the by-laws, was to convene in and the other officers in the discharge of August, 1921.

their official duties. Appellees instituted this action in the A transcript of the whole record in the chancery court of Jefferson county on Jan- case was filed here on July 24, 1922, and the uary 16, 1920, against Blakely and the other clerk granted an appeal. appellants who were associated with him in The decision of the case upon the merits the controversy which had arisen between of the controversy turns primarily upon the the Newton party and the Blakely party. In right of the prosecutors of the charges the complaint it was alleged that Newton against Newton to appeal to the subcommitbad been regularly re-elected grand master tee of management and the authority of that at the Hot Springs meeting for the ensuing body to hear the cause on appeal, but apterm of two years; that a resolution was pellees have filed a motion to dismiss the adopted at that meeting, in accordance with appeal on the ground that the decree of May the by-laws of the order, fixing the next 18, 1921, was final, and that the appeal was biennial meeting to be held at Pine Bluff in not prosecuted within six months, and also August, 1921; that Newton had been tried that since Newton was re-elected as grand and acquitted of the charges against him, master at the Pine Bluff meeting, and has and that the order of the subcommittee of since retired from that office, the question management was void for the reason that of the legality of his incumbency of the ofthe by-laws did not provide for an appeal fice for the term beginning with the Hot to that body by the prosecutors of charges, Springs meeting and ending with the Pine and that the appellants were wrongfully Bluff meeting has become a moot one.

[1] We are of the opinion that the coninterfering with Newton and the other grand lodge officers in the discharge of their of- tention of appellees is correct and that the ficial duties, particularly with reference to appeal should be dismissed. The decree of the holding of the next biennial meeting at May 18, 1921, was final, in form as well as Pine Bluff. The prayer of the complaint was

in substance, as to all the matters adjudicat. that appellants be restrained from the afore- ed. It was not merely an interlocutory orsaid interference with Newton and the other it finally adjudicated the question of the

der granting or continuing an injunction, but officers of the grand lodge, and the chancel- legality of the meeting to be held at Pine lor granted a temporary injunction in ac.

Bluff. • cordance with the prayer of the complaint. The appellants, or some of them, had in- District No. 1 v. Cooper, 150 Ark. 503, 234

In the recent case of Road Improvement stituted an action against appellees in the chancery court of Garland county to enjoin

S. W. 623, we said that, the latter from attempting to exercise the "An order or decree extending an injunction functions of office in the grand lodge, but for a fixed time, or until the happening of a

the prosecution of that case was restrained certain event, may be final, but it appears . by an order made by the Jefferson chancery clearly from the recitals in the decree that the

court meant to continue control over the incourt.

junction granted in this case and over the subAppellants appeared in the Jefferson chan-ject-matter of the litigation." cery court and filed an answer and crosscomplaint asking for the same relief which The court did not retain control over that they had asked for in the Garland chancery feature of the case but finally adjudicated

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(248 S.W.) which was to occur at a fixed time. It was Appeal from Circuit Court, Lee County; necessarily final in its nature, for it com- J. M. Jackson, Judge. pletely covered the subject-matter of that

Action by Pleasant Stevens against District part of the litigation.

Grand Lodge No. 11, Grand United Order of [2] Now, since we find that that part of Odd Fellows. From a judgment for plainthe decree was final and no appeal was pros- tiff, defendant appeals. Reversed and reecuted from it, it follows that the question manded for new trial. of general interference as adjudicated in the last decree has become moot. The litigation

J. F. Jones, of Pine Bluff, and Mann & MCbetween the parties only related to the va

Culloch, of Marianna, for appellant. lidity of the order of the subcommittee of

A. P. Smith, and Frank P. Fitzsimmons, management in deposing Newton from of- both of Marianna, for appellee. fice and appointing appellant Blakely for the remainder of that term. That term ex McCULLOCH, C. J. Appellant is a fraterpired and an election was held for the next nal society organized under the laws of the term at a meeting, the legality of which was state of Arkansas and bearing allegiance to a adjudicated by the decree from which no national organization known as the "Grand appeal was prosecuted. We are of the opin- United Order of Odd Fellows in America.” ion that this phase of the case is controlled There is a department of appellant organizaby the decision of this court in Kays v. Boyd, tion designated in the constitution and by145 Ark. 303, 224 S. W. 617.

laws as the District Grand Lodge Endowment The appeal is therefore dismissed.

Department, which furnishes insurance to members, in good standing, of the local lodges upon the payment of a small admission fee and the payment of quarterly dues. The

policy is issued in the sum of $300, and the DISTRICT GRAND LODGE NO. 11, GRAND present action is one to recover on a policy UNITED ORDER OF ODD FELLOWS, V.

issued to Pittman Stevens, a ber of one STEVENS. (No. 197.)

of the local lodges of the organization.

The by-laws provide that the endowment (Supreme Court of Arkansas. March 5, 1923. department shall be under the control of the Rehearing Denied April 2, 1923.) endowment board, consisting of the district

grand master, the endowment secretary, and 1. Insurance 755(4)-Payment of dues to the endowment treasurer. A section of the local secretary not such custom as to abro-by-laws reads as follows: gate by-laws. Where the by-laws of a fraternal society

"Sec. 6. The endowment secretary, on receipt provided that an endowment dues must be paid of the said first payment, shall issue to the to the endowment secretary, the fact that mem- member of the lodge a policy stipulating such bers of a branch lodge paid their dues to a payment. All endowment dues must be paid to local secretary, who in turn forwarded the sum the endowment secretary within thirty days aftto the endowment secretary, did not establisher the beginning of the quarter." a general custom or course of conduct on the part of the endowment department so as to

Another by-law provides for automatic forabrogate the by-law requiring payment to be feiture in the event of nonpayment of dues made by the member and confer authority on within the time prescribed. These provisions the local secretary as agent to collect.

are indorsed upon the policy itself. 2. Insurance 825(2)-Whether general cus

The provision indorsed on the policy with tom was established by payment of dues to reference to forfeiture in case of nonpayment local secretary, so as to make him agent of of dues reads as follows: superior body, was for jury.

"The failure of a member to pay quarterly Where the by-law of a fraternal society dues to the endowment secretary within thirty provided that endowment dues must be paid to days after the beginning of each quarter will the endowment secretary, in an action on a forfeit this policy without notice.” policy where it was shown that the members of a local lodge made a loan to him to pay dues, but It was the custom in the lodge to which the local secretary made error as to his name Pittman Stevens belonged for the members to in remitting the amount to the endowment de-pay their quarterly dues to the secretary of partment, which was not discovered until after that lodge, wbo remitted the same to the enthe death of the member, and where it was shown that the secretary of the local lodge made dowment secretary with a list showing the collections of money from its members and names of the members who had paid and the remitted to the superior body, whether there amounts. In July, 1921, three of the members was such a general course of conduct within of this local lodge, including Stevens, were the knowledge of the superior body as to show unable to pay their dues, which were payable authority of the local secretary to collect dues not later than July 31st, and the lodge defor it was for the jury.

cided to make each of them a loan of suffiHart, J., dissenting.

cient amount to pay their dues, and the secFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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retary of the lodge was instructed to send in the part of the endowment department or any the amount to the endowment secretary with of the officers thereof to control the local the payments made by other members. This secretary, and there is proof tending to show was done, but in making out the list of those that there was no attempt to exercise any who had paid, the lodge secretary erroneous-control over him. The most that is shown in ly omitted the name of Stevens and, instead the proof is that it is a custom in this parthereof, put in the name of a member named ticular lodge for the members to pay the local Martin, who had not paid. The endowment secretary and for the latter to forward the secretary on receipt of the list credited the amount to the endowment secretary. The amounts to the respective members who were case is therefore not controlled by the former named on the list. This payment was made decision referred to. In that case, as in to the endowment secretary on the last day many other cases, we have decided that the for payment, and the mistake was not dis- by-laws constituted a part of the contract becovered until after the death of Stevens, tween the members and the society. which occurred on August 27, 1921, and the [1] The mere fact that the members of this proofs of loss were subsequently sent in. particular lodge paid their dues to the local

Liability was denied on the ground that secretary, who, in turn, forwarded the sum to Stevens forfeited his policy by failure to pay the endowment secretary, does not establish the July dues within the time required by the a general custom or course of conduct on the laws of the association.

part of the endowment department or its At the conclusion of the trial the court governing officers so as to constitute an abgave a peremptory instruction in favor of rogation of those provisions of the by-laws appellee and judgment against appellant, which require the payment to be made by the which was accordingly entered for the full member and to confer authority upon the amount of the policy.

local secretary as the agent of the endowment The ruling of the court in taking the case department to collect the dues. Sovereign from the jury is defended under authority of Camp W.O. W. v. Barnes (Ark.) 243 S. W. 55. the case of Sovereign Camp v. Newsom, 142 [2] The testimony in the case, at most, Ark. 132, 219 S. W. 759, 14 A. L. R. 903, where only made it an issue for the jury to deterthe court held that where the clerk or secre- mine whether or not there had, in fact, been tary of a local branch of a mutual benefit so- established such a general course of conduct ciety is charged with the duty of collecting within the knowledge of the governing ofand forwarding monthly assessments and is ficers as to show authority to the local secsubject to suspension or removal for failure retary to collect the dues for the superior to discharge his duties, he is, in fact, the body. agent of the superior organization in the col The fact that a mistake was made in lection of such dues, “notwithstanding a rule omitting Stevens' name from the list of memor by-law of the order recites that such of-bers who had paid, and inserting in lieu ficer in collecting or forwarding assessments thereof another member who had not paid, shall be the agent of the members of the sub- is not a material factor as to the question of ordinate lodge.” The facts in the present liability under the policy, for the case turns case are quite different, however, from those upon the question whether or not the local recited in the opinion in the case referred to secretary was the agent of the superior body above. In that case the by-laws of the organ- in collecting and forwarding the dues. If he ization provided that it should be the duty was only the agent of the local lodge or of of the clerk or secretary of the local organ- the local members, and not of the superior ization to collect and forward the dues, and body, the latter was not responsible for the that for failure to discharge his duties the mistake, and the forwarding of the money superior body might remove him. In the for the payment of Martin's assessment did present case there is no authority conferred not constitute a payment of Stevens' assessby the by-laws upon the secretary of the local ment, notwithstanding the mistake. lodge to collect the dues. On the contrary, For the error in giving the peremptory inthe by-laws distinctly provide that payments struction, the judgment is reversed, and the shall be made by the members to the endow-cause remanded for a new trial. ment secretary within the time prescribed. The by-laws confer no authority whatever on HART, J., dissents.

(248 S.W.)

Appeal from Circuit Court, Craighead CounJONESBORO, L. C. & E. R. CO. V. MADDY. ty; W. W. Bandy, Judge. (No. 222.)

Action by C. P. Maddy against the Jones(Supreme Court of Arkansas. March 12, boro, Lake City & Eastern Railroad Com1923.)

pany. Judgment for plaintiff, and defendant

appeals. Reversed and remanded for new 1. Carriers om 218(10)-Provision in contract trial. requiring notice of claim for loss or injury held inapplicable to shipment never deliver C. P. Maddy sued the Jonesboro, Lake City ed or carried to destination.

& Eastern Railroad Company to recover damWhere a shipment of hogs was not in ages on account of the negligent delay and charge of the shipper or his agent, and it was misdelivery of a carload of hogs shipped not delivered to the consignees, but the railroad over the defendant's line of railroad to East Gelivered it to another than consignees, and St. Louis, III. they were never carried to their destination, the provisions of the contract of shipment re

C. P. Maddy, the plaintiff, was a witness quiring as a condition precedent to a claim for for himself. According to his testimony, in loss or injury during transportation that notice 1920 he lived at Lake City, Ark., and was thereof be given by the shipper or agent in engaged in buying and shipping live stock. charge thereof before removal of the hogs On the 6th day of April, 1920, he shipped from the station or stock yards at destination a carload of hogs over the Jonesboro, Lake was not applicable.

City & Eastern Railroad Company's road from 2. Carriers w215(1)-Carrier liable for neg- Lake City, Ark., to Davis & Daley, at East ligence of servants in course of employment St. Louis, Ill. There were 114 hogs in the and for delay caused by their going on a car, and they were in good condition. The strike.

plaintiff loaded the hogs in the car carefully, In general a carrier is liable for the negli and they should have reached their destina. gence of its servants during the course of their tion two days after they left Lake City. The employment, and, if they go on a strike, aban

hogs never reached their destination. The doning the performance of their duty and causing delay, the carrier is liable.

Swift Packing Company took charge of them 3. Commerce Cm8(1)-Courts oww 97(5)-in-the 22d inst. The plaintiff was charged $142.

on the 21st of April, 1920, and sold them on terstate shipments governed by acts of Con- 50 for the feed of the hogs in transit, and if gress.

Interstate shipments are governed by the they had gone to destination without delay acts of Congress and the decisions of the Su- a proper feed bill would have been only $5. preme Court construing same.

One of the hogs died in transit, and the oth4. Carriers Pro 218(1), 219(6)-Rule as to

ers fell off in weight on account of the delay when carrier can restrict liability for losses in their shipment. The plaintiff went on a resulting from strikes on its road or that of passenger train to St. Louis, Mo., and learned connecting carrier stated.

that the hogs were at Dupo, Ill. Nine or ten A carrier may by fair and reasonable agree-days after they were shipped the railroad ment restrict its liability to losses which are company wanted to deliver the hogs to the the proximate result of strikes on its own road, consignees at Dupo and have them bring them or that of connecting carriers, where the loss to their destination in trucks. The consignees is not occasioned by its negligence in the prem- declined to receive them at Dupo, and the ises, or it could not by reasonable diligence railroad company then took the hogs to Valhave prevented the loss.

meyer, about 20 miles below Dupo. 5. Carriers Card 218(1)-Carrier cannot exempt J. E. Davis and Mike Daley, the consignees, itself from liability for its own negligence. were also witnesses for the plaintiff. Their

A carrier cannot exempt itself from liabil- testimony was sustantially the same. ACity on account of its own negligence,

cording to their testimony a representative 6. Carriers w219(8)-Limiting initial carri. of the Missouri Pacific Railroad Company er's exemption from liability to finding de- asked them if they could accept the hogs at lay in interstate shipment was occasioned by Dupo and carry them to their destination in strike of terminal carrier's employés was er.

trucks. They told the railroad company that

they could not do this, and could not accept In action against an initial carrier, for loss the hogs at Dupo. Dupo is a station about to an interstate shipment of hogs, never deliv- 10 or 12 miles out from the National Stock ered to consignees, but turned over by an in. Yards in East St. Louis, and Valmeyer is a termediate carrier to another, it was error to station on the Missouri Pacific Railroad. The limit defendant's right to exemption from liability by reason of strikes to a finding that de hogs were never delivered to consignees, but lay was occasioned solely by a strike of em

were finally delivered by the railroad comployees of a terminal carrier, as the Interstate pany to Swift & Co. in East St. Louis, 11. Commerce Act (U. S. Comp. 'St. 8563 et seq.) The railroad company said that the delay in extends to all terminal facilities and instrumen- shipment and the misdelivery of the hogs was

due to a strike of the switchmen on the TerFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

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minal Railroad Company and some other rail- | piration of three hours after the giving of such roads which connected with it. The Terminal notice; and a failure to comply in every espect Railroad Company makes 90 per cent. of all with the terms of this clause shall be a comthe deliveries to the National Stock Yards in plete bar to any recovery of any and all such East St. Louis, and would have made the de- damages. The written notice heretofore prolivery of the hogs in question had they been vided for cannot and shall not be waived by any delivered to the consignees according to the and he only in writing. Nor shall any such

person except a general officer of the company, terms of the bill of lading. The amount of the damage be recoverable unless written claim shrinkage of the hogs and the value due to therefor shall be presented to the company their delay in carriage was established by within ninety-one days after the same may the plaintiff,

have occurred." According to the testimony of the defendant, the Missouri Pacific Railroad Company

The plaintiff did not give the notice to the carried the hogs to Dupo, which is the con

railroad company contemplated by paragraph necting point between its road and the Termi- 8 of the shipping contract. nal Railroad Association. The delay in the

The jury returned a verdict for the plainshipment and the misdelivery of the hogs was tiff in the sum of $508.50, upon which judgdue to a strike of the switchmen of the Ter- ment was rendered. The defendant railway minal Railroad Association and of the Mis- company has duly prosecuted an appeal to

this court. souri Pacific Railroad Company. The railroad company made every effort to deliver Eugene Sloan, of Jonesboro, for appellant. the hogs to the consignees. The Terminal Basil Baker, of Jonesboro, and J. F. JohnRailroad Association was the carrier which ston, of Lake City, for appellee. would have delivered the hogs to the consignees had the strike not prevented it. The

HART, J. (after stating the facts as above). delivery was prevented because the Termi. It is first insisted by counsel for the denal Railroad Association could not get suf- fendant that the court should have directficient switchmen.

ed a verdict in favor of the railway company The particular provisions in the contract because the notice required by paragraph 8 of shipment involved in this appeal are par- of the live stock contract of shipment was agraphs 6 and 8, which are as follows:

not given by the plaintiff. "Paragraph 6. The shipper hereby assumes The live stock contract in question involves and releases the company from risk of injury an interstate shipment of hogs. The Supreme or loss which may be sustained by reason of Court of the United States has held that a any delay in such transportation of said stock, stipulation in a contract which is governed or injury thereto, caused by any mob, strike, by the Carmack Amendment for the interthreatened or actual violence to real or per- state transportation of live stock releases the sonal property, or by the refusal of the com-carrier from all loss or damage unless a writpany's employees to work or otherwise, or the failure of machinery, engines or cars, or by in- ten claim therefor is made on the carrier's jury to tracks or yards, storms, washouts, es- freight claim agent within 10 days after uncape or robbery of any of said stock, over- loading the live stock. St. L., I. M. & S. R. loading cars, fright to animals, or crowding Co. v. Starbird, 243 U. S. 592, 37 Sup. Ct. 462, one upon another, or from any and all other 61 L. Ed. 917; Erie Railroad Co. v. Stone et causes whatever, the liability of the carrier | al., 244 U. S. 332, 37 Sup. Ct. 633, 61 L. Ed. or any fact essential thereto in any instance or case shall not be presumed, but the burden of 1173; Southern Pacific Co. v. Stewart, 248 U. establishing such liability is assumed by the S. 446, 39 Sup. Ct. 139, 63 L. Ed. 350. shipper in the event of a suit."

[1] We do not think, however, the facts “Paragraph 8. In order that any loss or and circumstances as they appear from the damage to be claimed by the shipper may be ful- record bring this case within the principles ly and fairly investigated and the facts and na- of law decided in the cases just cited. In the ture of such claim or loss preserved beyond present case the hogs were not in charge of dispute and by the best evidence, it is agreed the shipper or his agent, and they were never that as a condition precedent to his right to delivered to the consignees. The undisputed recover any damages for any loss or injury to said stock during the transportation thereof, evidence shows that the railroad company deor at any place or places where the same may

livered the hogs to another company than the be loaded or unloaded for any purpose on the consignees, and that they were never carried company's road, or previous to loading there to their destination. Hence the provisions of of for shipment, the shipper or his agent in paragraph 8 of the contract of shipment do charge of the stock will give notice in writing not apply under the facts presented by the of his claim therefor to some officer of said record. company, or to the nearest station agent, or if

[2] It is next contended that the court moved from the place of destination above men-erred in giving instruction No. 3, which is as tioned, or from the place of delivery of the

follows: same to the consignee, and before such stock shall have been slaughtered or intermingled "You are instructed that if you find from the with other stock, and will not move such stock evidence that the delay in the delivery at St.

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