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 to be, under the by-laws of the national organization, a governing board of the national organization. The subcommittee of management entered an order finding Newton guilty of the charges and removing him from office. Another order made by the subcommittee of management appointed J. I. Blakely, one of the appellants, as district grand master in the place of Newton. The order contained a specification that Blakely's tenure should extend no longer than to the next meeting of the Grand Lodge of Arkansas, which, under the by-laws, was to convene in August, 1921. olution adopted by the grand lodge at Hot Springs in accordance with the laws of the association and dismissing the cross-complaint of appellants for want of equity and restraining them from "further interfering with Thomas L. Newton as grand master in the discharge of his duties as such and calling the grand lodge to convene in Pine Bluff, Ark., in 1921." There was no separate appeal from that decree, but another decree was rendered by the court on January 25, 1922, restraining appellants from interfering with Newton and the other officers in the discharge of their official duties. A transcript of the whole record in the case was filed here on July 24, 1922, and the clerk granted an appeal. The decision of the case upon the merits of the controversy turns primarily upon the right of the prosecutors of the charges against Newton to appeal to the subcommittee of management and the authority of that body to hear the cause on appeal, but appellees have filed a motion to dismiss the appeal on the ground that the decree of May 18, 1921, was final, and that the appeal was not prosecuted within six months, and also that since Newton was re-elected as grand master at the Pine Bluff meeting, and has since retired from that office, the question of the legality of his incumbency of the office for the term beginning with the Hot Springs meeting and ending with the Pine Bluff meeting has become a moot one. Appellees instituted this action in the chancery court of Jefferson county on January 16, 1920, against Blakely and the other appellants who were associated with him in the controversy which had arisen between the Newton party and the Blakely party. In the complaint it was alleged that Newton had been regularly re-elected grand master at the Hot Springs meeting for the ensuing term of two years; that a resolution was adopted at that meeting, in accordance with the by-laws of the order, fixing the next biennial meeting to be held at Pine Bluff in August, 1921; that Newton had been tried and acquitted of the charges against him, and that the order of the subcommittee of management was void for the reason that the by-laws did not provide for an appeal to that body by the prosecutors of charges, and that the appellants were wrongfully interfering with Newton and the other grand lodge officers in the discharge of their official duties, particularly with reference to the holding of the next biennial meeting at Pine Bluff. The prayer of the complaint was that appellants be restrained from the afore-ed. It was not merely an interlocutory orsaid interference with Newton and the other officers of the grand lodge, and the chancellor granted a temporary injunction in ac.cordance with the prayer of the complaint. The appellants, or some of them, had instituted an action against appellees in the chancery court of Garland county to enjoin the latter from attempting to exercise the functions of office in the grand lodge, but the prosecution of that case was restrained by an order made by the Jefferson chancery court. Appellants appeared in the Jefferson chancery court and filed an answer and crosscomplaint asking for the same relief which they had asked for in the Garland chancery court. The feature of the case which re [1] We are of the opinion that the contention of appellees is correct and that the appeal should be dismissed. The decree of May 18, 1921, was final, in form as well as in substance, as to all the matters adjudicat it finally adjudicated the question of the der granting or continuing an injunction, but legality of the meeting to be held at Pine Bluff. District No. 1 v. Cooper, 150 Ark. 505, 234 "An order or decree extending an injunction for a fixed time, or until the happening of a certain event, may be final, but it appears clearly from the recitals in the decree that the court meant to continue control over the injunction granted in this case and over the subject-matter of the litigation." The court did not retain control over that feature of the case but finally adjudicated it, and the adjudication related to a matter (248 S. W.) which was to occur at a fixed time. It was necessarily final in its nature, for it completely covered the subject-matter of that part of the litigation. Appeal from Circuit Court, Lee County; J. M. Jackson, Judge. Action by Pleasant Stevens against District Grand Lodge No. 11, Grand United Order of Odd Fellows. From a judgment for plaindefendant appeals. Reversed and remanded for new trial. J. F. Jones, of Pine Bluff, and Mann & McCulloch, of Marianna, for appellant. A. P. Smith, and Frank P. Fitzsimmons, both of Marianna, for appellee. [2] Now, since we find that that part of the decree was final and no appeal was prostiff, ecuted from it, it follows that the question of general interference as adjudicated in the last decree has become moot. The litigation between the parties only related to the validity of the order of the subcommittee of management in deposing Newton from office and appointing appellant Blakely for the remainder of that term. That term expired and an election was held for the next term at a meeting, the legality of which was adjudicated by the decree from which no appeal was prosecuted. We are of the opinion that this phase of the case is controlled by the decision of this court in Kays v. Boyd, 145 Ark. 303, 224 S. W. 617. The appeal is therefore dismissed. DISTRICT GRAND LODGE NO. 11, GRAND UNITED ORDER OF ODD FELLOWS, v. STEVENS. (No. 197.) (Supreme Court of Arkansas. March 5, 1923. Rehearing Denied April 2, 1923.) 1. Insurance 755 (4)-Payment of dues to local secretary not such custom as to abrogate by-laws. Where the by-laws of a fraternal society provided that all endowment dues must be paid to the endowment secretary, the fact that members of a branch lodge paid their dues to a local secretary, who in turn forwarded the sum to the endowment secretary, did not establish a general custom or course of conduct on the part of the endowment department so as to abrogate the by-law requiring payment to be made by the member and confer authority on the local secretary as agent to collect. 2. Insurance 825 (2)-Whether general custom was established by payment of dues to local secretary, so as to make him agent of superior body, was for jury. Where the by-law of a fraternal society provided that endowment dues must be paid to the endowment secretary, in an action on a policy where it was shown that the members of a local lodge made a loan to him to pay dues, but the local secretary made error as to his name in remitting the amount to the endowment department, which was not discovered until after the death of the member, and where it was shown that the secretary of the local lodge made collections of money from its members and remitted to the superior body, whether there was such a general course of conduct within the knowledge of the superior body as to show authority of the local secretary to collect dues for it was for the jury. Hart, J., dissenting. McCULLOCH, C. J. Appellant is a fraternal society organized under the laws of the state of Arkansas and bearing allegiance to a national organization known as the "Grand United Order of Odd Fellows in America." There is a department of appellant organization designated in the constitution and bylaws as the District Grand Lodge Endowment 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 present action is one to recover on a policy issued to Pittman Stevens, a member of one of the local lodges of the organization. The by-laws provide that the endowment department shall be under the control of the endowment board, consisting of the district grand master, the endowment secretary, and the endowment treasurer. A section of the by-laws reads as follows: "Sec. 6. The endowment secretary, on receipt of the said first payment, shall issue to the member of the lodge a policy stipulating such payment. All endowment dues must be paid to the endowment secretary within thirty days after the beginning of the quarter." Another by-law provides for automatic forfeiture in the event of nonpayment of dues within the time prescribed. These provisions are indorsed upon the policy itself. The provision indorsed on the policy with reference to forfeiture in case of nonpayment of dues reads as follows: "The failure of a member to pay quarterly dues to the endowment secretary within thirty days after the beginning of each quarter will forfeit this policy without notice." It was the custom in the lodge to which Pittman Stevens belonged for the members to pay their quarterly dues to the secretary of that lodge, who remitted the same to the endowment secretary with a list showing the names of the members who had paid and the amounts. In July, 1921, three of the members of this local lodge, including Stevens, were unable to pay their dues, which were payable not later than July 31st, and the lodge decided to make each of them a loan of sufficient amount to pay their dues, and the sec For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes retary of the lodge was instructed to send in the amount to the endowment secretary with the payments made by other members. This was done, but in making out the list of those who had paid, the lodge secretary erroneously omitted the name of Stevens and, instead thereof, put in the name of a member named Martin, who had not paid. The endowment secretary on receipt of the list credited the amounts to the respective members who were named on the list. This payment was made to the endowment secretary on the last day for payment, and the mistake was not discovered until after the death of Stevens, which occurred on August 27, 1921, and the proofs of loss were subsequently sent in. Liability was denied on the ground that Stevens forfeited his policy by failure to pay the July dues within the time required by the laws of the association. At the conclusion of the trial the court gave a peremptory instruction in favor of appellee and judgment against appellant, which was accordingly entered for the full amount of the policy. the part of the endowment department or any of the officers thereof to control the local secretary, and there is proof tending to show that there was no attempt to exercise any control over him. The most that is shown in the proof is that it is a custom in this particular lodge for the members to pay the local secretary and for the latter to forward the amount to the endowment secretary. The case is therefore not controlled by the former decision referred to. In that case, as in many other cases, we have decided that the by-laws constituted a part of the contract between the members and the society. [1] The mere fact that the members of this particular lodge paid their dues to the local secretary, who, in turn, forwarded the sum to the endowment secretary, does not establish a general custom or course of conduct on the part of the endowment department or its governing officers so as to constitute an abrogation of those provisions of the by-laws which require the payment to be made by the member and to confer authority upon the local secretary as the agent of the endowment department to collect the dues. Sovereign Camp W. O. W. v. Barnes (Ark.) 243 S. W. 55. [2] The testimony in the case, at most, only made it an issue for the jury to deter established such a general course of conduct within the knowledge of the governing officers as to show authority to the local secretary to collect the dues for the superior body. The fact that a mistake was made in omitting Stevens' name from the list of members who had paid, and inserting in lieu thereof another member who had not paid, is not a material factor as to the question of liability under the policy, for the case turns upon the question whether or not the local secretary was the agent of the superior body The ruling of the court in taking the case from the jury is defended under authority of the case of Sovereign Camp v. Newsom, 142 Ark. 132, 219 S. W. 759, 14 A. L. R. 903, where the 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 society is charged with the duty of collecting and forwarding monthly assessments and is subject to suspension or removal for failure to discharge his duties, he is, in fact, the agent of the superior organization in the collection of such dues, “notwithstanding a rule or by-law of the order recites that such officer in collecting or forwarding assessments shall be the agent of the members of the subordinate lodge." The facts in the present case are quite different, however, from those recited in the opinion in the case referred to 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 of the clerk or secretary of the local organization to collect and forward the dues, and that for failure to discharge his duties the superior body might remove him. In the present case there is no authority conferred by the by-laws upon the secretary of the local lodge to collect the dues. On the contrary, the by-laws distinctly provide that payments shall be made by the members to the endowment secretary within the time prescribed. The by-laws confer no authority whatever on was only the agent of the local lodge or of the local members, and not of the superior body. the latter was not responsible for the mistake, and the forwarding of the money for the payment of Martin's assessment did not constitute a payment of Stevens' assessment, notwithstanding the mistake. For the error in giving the peremptory instruction, the judgment is reversed, and the cause remanded for a new trial. 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.) (Supreme Court of Arkansas. March 12, 1923.) 1. Carriers 218(10)-Provision in contract requiring notice of claim for loss or injury held inapplicable to shipment never delivered or carried to destination. Where a shipment of hogs was not in charge of the shipper or his agent, and it was not delivered to the consignees, but the railroad delivered it to another than consignees, and they were never carried to their destination, the provisions of the contract of shipment requiring as a condition precedent to a claim for loss or injury during transportation that notice thereof be given by the shipper or agent in charge thereof before removal of the hogs from the station or stock yards at destination was not applicable. Action by C. P. Maddy against the Jonesboro, Lake City & Eastern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial. C. P. Maddy sued the Jonesboro, Lake City & Eastern Railroad Company to recover damages on account of the negligent delay and misdelivery of a carload of hogs shipped over the defendant's line of railroad to East St. Louis, Ill. C. P. Maddy, the plaintiff, was a witness for himself. According to his testimony, in 1920 he lived at Lake City, Ark., and was engaged in buying and shipping live stock. On the 6th day of April, 1920, he shipped a carload of hogs over the Jonesboro, Lake City & Eastern Railroad Company's road from 2. Carriers 215(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 strike. car, and they were in good condition. The plaintiff loaded the hogs in the car carefully, and they should have reached their destina. tion two days after they left Lake City. The In general a carrier is liable for the negli gence of its servants during the course of their employment, and, if they go on a strike, abandoning the performance of their duty and caus-hogs never reached their destination. The ing delay, the carrier is liable. 3. Commerce 8(1)-Courts 97(5)-Interstate shipments governed by acts of Con gress. Interstate shipments are governed by the acts of Congress and the decisions of the Supreme Court construing same. to 4. Carriers 218(1), 219(6)-Rule as when carrier can restrict liability for losses resulting from strikes on its road or that of connecting carrier stated. Swift Packing Company took charge of them the 22d inst. The plaintiff was charged $142.on the 21st of April, 1920, and sold them on 50 for the feed of the hogs in transit, and if they had gone to destination without delay a proper feed bill would have been only $5. One of the hogs died in transit, and the others fell off in weight on account of the delay in their shipment. The plaintiff went on a passenger train to St. Louis, Mo., and learned 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 the proximate result of strikes on its own road, or that of connecting carriers, where the loss is not occasioned by its negligence in the premises, or it could not by reasonable diligence have prevented the loss. 5. Carriers 218(1)—Carrier cannot exempt ror. In action against an initial carrier, for loss to an interstate shipment of hogs, never deliv'ered to consignees, but turned over by an in termediate carrier to another, it was error to limit defendant's right to exemption from liability by reason of strikes to a finding that delay was occasioned solely by a strike of employees of a terminal carrier, as the Interstate Commerce Act (U. S. Comp. St. § 8563 et seq.) extends to all terminal facilities and instrumentalities. company wanted to deliver the hogs to the consignees at Dupo and have them bring them to their destination in trucks. The consignees declined to receive them at Dupo, and the railroad company then took the hogs to Valmeyer, about 20 miles below Dupo. J. E. Davis and Mike Daley, the consignees, were also witnesses for the plaintiff. Their testimony was sustantially the same. According to their testimony a representative of the Missouri Pacific Railroad Company asked them if they could accept the hogs at Dupo and carry them to their destination in trucks. They told the railroad company that they could not do this, and could not accept the hogs at Dupo. Dupo is a station about 10 or 12 miles out from the National Stock Yards in East St. Louis, and Valmeyer is a station on the Missouri Pacific Railroad. The hogs were never delivered to consignees, but were finally delivered by the railroad company to Swift & Co. in East St. Louis, III. The railroad company said that the delay in shipment and the misdelivery of the hogs was due to a strike of the switchmen on the Ter For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes minal Railroad Company and some other railroads which connected with it. The Terminal Railroad Company makes 90 per cent. of all the deliveries to the National Stock Yards in East St. Louis, and would have made the delivery of the hogs in question had they been delivered to the consignees according to the terms of the bill of lading. The amount of the shrinkage of the hogs and the value due to their delay in carriage was established by the plaintiff. According to the testimony of the defendant, the Missouri Pacific Railroad Company carried the hogs to Dupo, which is the connecting point between its road and the Terminal Railroad Association. The delay in the shipment and the misdelivery of the hogs was due to a strike of the switchmen of the Terminal Railroad Association and of the Missouri Pacific Railroad Company. The railroad company made every effort to deliver the hogs to the consignees. The Terminal Railroad Association was the carrier which would have delivered the hogs to the consignees had the strike not prevented it. The delivery was prevented because the Terminal Railroad Association could not get sufficient switchmen. The particular provisions in the contract of shipment involved in this appeal are paragraphs 6 and 8, which are as follows: "Paragraph 6. The shipper hereby assumes and releases the company from risk of injury or loss which may be sustained by reason of any delay in such transportation of said stock, or injury thereto, caused by any mob, strike, threatened or actual violence to real or personal property, or by the refusal of the company's employees to work or otherwise, or the failure of machinery, engines or cars, or by injury to tracks or yards, storms, washouts, escape or robbery of any of said stock, overloading cars, fright to animals, or crowding one upon another, or from any and all other causes whatever, the liability of the carrier or any fact essential thereto in any instance or case shall not be presumed, but the burden of establishing such liability is assumed by the shipper in the event of a suit." piration of three hours after the giving of such notice; and a failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages. The written notice heretofore provided for cannot and shall not be waived by any person except a general officer of the company, and he only in writing. Nor shall any such damage be recoverable unless written claim therefor shall be presented to the company within ninety-one days after the same may have occurred." The plaintiff did not give the notice to the railroad company contemplated by paragraph 8 of the shipping contract. The jury returned a verdict for the plaintiff in the sum of $508.50, upon which judg ment was rendered. The defendant railway company has duly prosecuted an appeal to this court. Eugene Sloan, of Jonesboro, for appellant. Basil Baker, of Jonesboro, and J. F. Johnston, of Lake City, for appellee. HART, J. (after stating the facts as above). It is first insisted by counsel for the defendant that the court should have directed a verdict in favor of the railway company because the notice required by paragraph 8 of the live stock contract of shipment was not given by the plaintiff. The live stock contract in question involves an interstate shipment of hogs. The Supreme Court of the United States has held that a stipulation in a contract which is governed by the Carmack Amendment for the interstate transportation of live stock releases the carrier from all loss or damage unless a written claim therefor is made on the carrier's freight claim agent within 10 days after unloading the live stock. St. L., I. M. & S. R. Co. v. Starbird, 243 U. S. 592, 37 Sup. Ct. 462, 61 L. Ed. 917; Erie Railroad Co. v. Stone et al., 244 U. S. 332, 37 Sup. Ct. 633, 61 L. Ed. 1173; Southern Pacific Co. v. Stewart, 248 U. S. 446, 39 Sup. Ct. 139, 63 L. Ed. 350. of law decided in the cases just cited. In the present case the hogs were not in charge of the shipper or his agent, and they were never delivered to the consignees. The undisputed evidence shows that the railroad company delivered the hogs to another company than the consignees, and that they were never carried to their destination. Hence the provisions of paragraph 8 of the contract of shipment do not apply under the facts presented by the record. [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 nature of such claim or loss preserved beyond dispute and by the best evidence, it is agreed that as a condition precedent to his right to recover any damages for any loss or injury to said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company's road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim therefor to some officer of said company, or to the nearest station agent, or if moved from the place of destination above mentioned, or from the place of delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stock yards until the ex [2] It is next contended that the court erred in giving instruction No. 3, which is as follows: "You are instructed that if you find from the evidence that the delay in the delivery at St. Louis was occasioned solely by a strike on the |