Chenoweth v. Harris

Opinion by Beaver, J., -Judgment was entered in the court below for the plaintiff for [32] want of a sufficient affidavit of defense. The grounds of de- • fense, as stated in the defendant’s affidavit, were, (1) that the ■ plaintiff had “ no lawful right to sue for or receive the amount claimed in this case;” (2) that the defendant association, of' which the council which plaintiff claims to represent became a member May 20, 1893, had construed the by-laws of the association adopted February 22,1897, which construction had been “ accepted by all members of defendant association without pro-r test and by common consent among all the councils forming • said defendant association, to mean that no death benefit can be claimed for any death which has occurred, while the council to ■ which the decedent belonged was indebted for an assessment more than thirty days, and that said arrearage barred all claim for any benefit arising from said death; ” and (3) “ that depo- - nent is informed, advised dnd believes the plaintiff is not entitied to recover in this action under the by-laws of said defendant association.” The plaintiff brought his suit in his representative capacity,. and, inasmuch as by section 2 of article 8 of the by-laws of the defendant association, it is made “the duty of the councilor to look after all business of the council with this association,” and he is also thereby made “ the medium of communication between the council and the association in differences which may arise regarding membership or assessments,” it would seem that both by the by-laws of the association itself and by the general rule governing such actions this suit was well brought.. See Singing Society v. Turn Verein, 163 Pa. 265. It is not intimated in the second paragraph of the defendant’s affidavit that, the plaintiff is legally barred from bringing his action because of “ the accepted construction of all the members of defendant association, without protest and by common consent, of the bylaws governing the claim for death benefits during the arrearages of the council to which the deceased member belonged.” And inasmuch as the said construction is not by the by-laws made conclusive of the plaintiff’s rights, he is not thereby deprived of his remedy at law. The case of Myers v. Fritchman, 6 Pa. Superior Ct. 580, cited by appellant, construes the constitution, of a beneficial association in which the report of a playsiciair approved by the council was made final, but we have no such provision here. It may also be properly remarked, as suggested [33] by appellee, that tbe plaintiff’s rights had accrued before the alleged construction was made. So far, therefore, as this part of the defense is concerned, the judgment might well be sustained without further inquiry. We are of opinion, however, that the contention of the appellee in regard to the construction of section 6 of article 7 of the by-laws of the defendant association is, from a legal standpoint, the proper one. The said section reads as follows: “ Any council failing to pay an assessment by the last day of the month shall be fined five cents additional for each and every member, as per the assessment, and shall be debarred from all participation in the funds or any of the benefits of this association, until all assessments and fines charged to them are paid, and, should the neglect continue for another month, the council shall be marked ‘ suspended.’ ” The word “ until ” is to be construed according to its ordinary meaning, namely, “ to the time when,” that is, that the council failing to pay an assessment, as provided in this section, shall be debarred from participating in benefits until and only to the time when the assessments and the fines charged because of default are fully paid, unless, upon further default, the council should be suspended. The case of Knights of Honor v. Abbott, 82 Indiana, 1, cited by appellee, contains an interesting discussion of this question. It is not necessary to comment upon the third ground of defense, as it is vague and uncertain, no articles or sections of the by-laws being set out. under which the defendant alleges the plaintiff “ not entitled to recover.” On the whole case, as presented by the plaintiff’s statement of claim and the defendant’s affidavit of defense, we think the plaintiff clearly entitled to recover and the judgment is, therefore, affirmed.