PATRICK J. GLEASON v. DULUTH NEST NO. 1200 ORDER OF OWLS AND OTHERS

Minnesota Supreme Court1931-06-12No. No. 28,431

183 Minn. 512

Summary · law.co

Holding. The judgment was affirmed. The trial court properly found that the defendants waived enforcement of the membership dues bylaws, entitling the plaintiff to recover the $100 funeral benefit.

Thomas Gleason was a member of the Order of Owls for approximately 18 years and died in December 1928. Under the organization's bylaws, members in good standing at death were entitled to a $100 funeral benefit. The defendants claimed Gleason had terminated his membership around April 1928 by failing to pay required dues, which would have disqualified him from the benefit under provisions allowing suspension after nonpayment.

The trial court found that the defendants had waived enforcement of the bylaw provisions regarding dues delinquency. This conclusion was supported by evidence showing Gleason had a consistent pattern of late payments throughout his membership, that the organization never complained or protested his tardiness, that dues were always accepted whenever submitted, and that no formal notice was ever given that the bylaws would be enforced. The defendants also raised a new procedural argument for the first time on appeal—that the plaintiff failed to allege or prove he had actually paid funeral expenses. The court rejected this argument as untimely because the defendants had not raised it in the trial court and instead litigated the case on the merits of the waiver defense.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an organization waives enforcement of bylaws by accepting late dues payments without protest or notice of enforcement
Whether a defense based on pleading defects may be raised for the first time on appeal when defendants litigated the case on alternative grounds

Procedural posture

The defendants appealed from a trial court judgment in favor of the plaintiff seeking a $100 funeral benefit owed by the organization to a deceased member.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Wilson, C. J.

Defendants appealed from a judgment.

Thomas R. Gleason was a member of Duluth Nest No. 1200 Order of Owls for about 18 years. He died December 1, 1928, testate, leaving the plaintiff, his brother, as his residuary legatee.

The by-laws provide that upon the death of a member in good standing at the time of his death the sum of $100 shall be appropriated by the trustees toward his funeral expenses. This action is to recover such $100. Art. 6, § 1, of the by-laws also provides:

“When a member shall have become in arrears for dues or assessments he shall be notified by the secretary, and if he does not pay up within three months, he shall again be notified at his last known address, and if he does not pay within ten days thereafter shall stand suspended. At the end of one year he will be dropped from the rolls.”

The answer alleged that decedent had terminated his membership about April 1, 1928, by failing to pay his dues as required by the by-laws. The reply alleged waiver of the by-laws, and the court held that the defendants had waived them.

The facts upon which such waiver is based are these:

During deceased’s membership he was usually delinquent in the payment of his dues; that no complaint or protest was ever ‘made; that dues were always accepted regardless of the time when offered; that dues would have been accepted at any time up to the time of his death; that notices for the payment of dues were sent to decedent at irregular periods; that such notices were in the same form whether decedent was in arrears or otherwise; that decedent was never given any notice that the provisions of the by-laws would be enforced; that on the day of decedent’s death notice was sent to him inviting him to come to a meeting. The record of payments made during the last four years of decedent’s life is as follows:

“August 5, 1924, $6.00—7 months and 5 days late.

“January 10, 1925, $4.50—4 months and 10 days late.

“November 7, 1925, $6.00—8 months and 7 days late.

“For November and December, 1925, $1.50.

“March 10, 1926, $4.50—2 months and 10 days late.

“August 8, 1926, $1.50—1 month and 8 days late.

“For September and October,

“November and December, 1926, $8.00.

“February 1, 1927, $2.25—1 month late.

“For May and June, 1927, $2.25.

“October 1, 1927, $2.25—3 months late.

“November 14, 1927, $2.25—1 month and 14 days late.

“March 27, 1928, $2.25—2 months and 28 days late.”

Such record supports the finding of waiver. Behnke v. Modern Brotherhood, 167 Minn. 104, 208 N. W. 542; Leland v. Modern Samaritans, 111 Minn. 207, 126 N. W. 728.

Defendants noAV advance in this court for the first time the claim that before recovery may be had in an action of this character the plaintiff must allege and prove that he is the person who has incurred or paid the funeral expenses. Plaintiff neither alleged nor proved that he had done either. Authorities are cited to support the claim. We do not examine or consider them. This point was never made in the loAver court by demurrer, by a specific objection to the introduction of evidence, or otherAvise. Defendants alleged and stood on a definite defense under their by-laAvs. The reply made waiver the issue Avhich was litigated. Concededly the man Avas dead and Avas buried. Defendants must be held to have voluntarily litigated their liability regardless of the uoav alleged defect in the complaint. They acted just as though no such defect in the pleading existed. Having lost in the trial of the issue so litigated, they cannot uoav be heard to go back and assert defects in the pleading which might have been within their reach had the point been seasonably made. Segerstrom v. Holland Piano Mfg. Co. 142 Minn. 104, 170 N. W. 930; Strand v. C. G. W. R. Co. 147 Minn. 1, 179 N. W. 369.

Affirmed.