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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Collins v. Barrowfield Lodge of Oddfellows Friendly Society [1914] ScotLR 388 (02 December 1914) URL: http://www.bailii.org/scot/cases/ScotCS/1914/52SLR0388.html |
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Page: 388↓
[Sheriff Court at Glasgow.
A member of a friendly society having been expelled by his lodge, but the expulsion not having been sustained on appeal to the district court, brought an action against the lodge for decree
Page: 389↓
that he was still a member and for payment of the sick benefit he was thereby entitled to. Held that the action was competent, and decree granted. Gall v. Loyal Glenbogie Lodge of Oddfellows Friendly Society, July 14, 1900, 2 F. 1187, 37 S.L.R. 911, commented on and explained.
The Friendly Societies Act 1896 (59 and 60 Vict., cap. 25), section 68 (1), as applied to Scotland by section 102, enacts—“Every dispute between ( a) a member or person claiming through a member or under the rules of a registered society or branch, and the society or branch or an officer thereof, or ( b) any person aggrieved who has for not more than six months ceased to be a member of a registered society or branch, or any person claiming through such person aggrieved, and the society or branch or an officer thereof.… shall be decided in manner directed by the rules of the society or branch, and the decision so given shall be binding and conclusive on all parties without appeal, and shall not be removable into any court of law or restrainable by injunction, and application for the enforcement thereof may be made to the Sheriff Court of the county.”
The Friendly Societies Act 1908 (8 Edw. VII, cap. 32), section 6, enacts—“In section 68 of the principal Act [ sup.] … the words ‘for not more than six months’ shall be repealed in paragraph ( b) of sub-section (1), and at the end of the section the following new sub-section shall be added:—(8) In this section the expression ‘dispute’ includes any dispute arising on the question whether a member or person aggrieved is entitled to be or to continue to be a member or to be reinstated as a member, but, save as aforesaid, in the case of a person who has ceased to be a member, does not include any dispute other than a dispute on a question between him and the society or branch or an officer thereof which arose whilst he was a member, or arises out of his previous relation as a member to that society or branch.”
In October 1913 Henry Collins, 3 St Margaret's Place, Glasgow, pursuer, brought an action in the Sheriff Court at Glasgow against John Morrison and others, trustees appointed by the Barrowfield Lodge No. 24 Branch of the West of Scotland District of the Caledonian Order of United Oddfellows Friendly Society, registered under the Friendly Societies Act 1896, Mile End, Glasgow, defenders. The pursuer sought declarator that he was a member of the Lodge and as such entitled to the benefits attaching to membership, and for decree for payment of the sick benefit to which he was entitled, viz., aliment at the rate of 4s. 10
d. per week from 19th October 1912 to the date of citation, with interest, reserving his right to claim further weekly payments until he should cease to be entitled thereto in terms of the rules of the Lodge; alternatively, decree for repayment of the sums paid by him into the Lodge between 17th February 1896 and 3rd June 1913, amounting with interest to £35 approximately. 1 2 The defenders, inter alia, pleaded—“2. The action is incompetent.”
The pursuer joined the Lodge on 17th February 1896, signing a declaration as to good health and age. In February 1912 he was asked, owing as averred to the requirements of the National Health Insurance Act 1911, to supply an extract of his birth certificate. This he failed to do, and on 22nd October 1912 he was suspended from benefit. Thereafter an extract of baptism was obtained, on his information, and from it it appeared that he had in his declaration understated his age by two years. The pursuer was expelled at a meeting of the Lodge on 19th November 1912. He appealed to the District Court, which after a hearing sent back his application to the Lodge for rehearing. On 11th February 1913 the Lodge again expelled him. The District Executive sustained an appeal. The defenders appealed to the Grand Lodge, which refused to hear the appeal on the ground that the case was one for arbitration, informing the pursuer that he could take whatever further action he might think right. It subsequently, on June 17, 1913, expressed willingness to hear the appeal if both parties were agreeable, but the pursuer declined to move in the matter.
On December 15, 1913, the Sheriff-Substitute ( A. S. D. Thomson) sustained the defenders' second plea and dismissed the action with expenses.
Note.—“The pursuer craves declarator that he is a member of defenders' Lodge of Oddfellows. He complains that defenders wrongfully expelled him from the Lodge, that on appeal to the District Lodge the expulsion was recalled, and that he is therefore still a member, and entitled as such to sick benefit money, for which also he craves a decree. His ground of action accordingly is that being a member de jure the Lodge refuses to recognise him as a member de facto, and that the Court therefore should interpose and declare him to be a member and entitled to sick benefit money.
“The Court, however, has clearly laid it down that it will not ordain a society or lodge like defenders' to recognise a party as a member and to treat him as such, the reason being as stated by Lord President Inglis in Aitken v. Associated Carpenters and Joiners of Scotland, 12 R. 1206, at p. 1212, 22 S.L.R. 796—‘What, then, would be the effect of our reinstating the pursuer in his position as a member of this Society? and what would be the effect of our decree? The Court could not enforce it. The Society would simply refuse to recognise the decree of the Court, and that is not a position in which the Court could allow itself to stand towards any person or any number of persons.’
A later decision supporting this view is Gall v. Loyal Glenbogie Lodge of the Oddfellows Friendly Society, and the point is apparently now quite settled in Scotland. The result therefore seems to be that the first alternative prayer is incompetent.
The alternative prayer is, I think, also incompetent. It seeks repayment of all contributions
Page: 390↓
pursuer has made to the Lodge since he became a member in the year 1896. In other words, for an alleged breach of the contract he seeks the equitable remedy of rescission of the contract seventeen years after it was entered into and after it had been entered into by both parties, and without any offer of restitutio in integrum. This seems out of the question. His remedy, if he has any, is by way of damages and not for rescission. “Even apart from this objection there remains the argument for defenders that his dismissal was warranted by the terms of the written contract between the parties in the admitted circumstances of the case. The soundness of this argument seems established by the authorities cited by the defenders, but I have felt some doubt whether the defenders are entitled to state this point, seeing it has been decided against them by the tribunal before which they appeared—that is to say, the District Lodge of their Society—and therefore I prefer to base my judgment on the other grounds which I have stated.”
The pursuers appealed to the Court of Session, and in argument cited the Friendly Societies Act 1896 (59 and 60 Vict. cap. 25), sec. 68; the Friendly Societies Act 1908 (8 Edw. VII, cap. 32), sec. 6; Aitken v. Associated Carpenters and Joiners of Scotland, July 4, 1885, 12 R. 1206, 22 S.L.R. 796; Swaine v. Wilson, (1889) 24 QBD 252; Willis v. Wells & Others, [1892] 2 QB 225; Glasgow-District of Ancient Order of Foresters v. Stevenson, October 19, 1899, 2 F. 14, 37 S.L.R. 12; M'Gowan v. City of Glasgow Friendly Society, 1913 S.C. 991, 50 S.L.R. 783; Andrews v. Mitchel, [1905] AC 78; and distinguished Gall v. Loyal Glenbogie Lodge of the Oddfellows Friendly Society, July 14, 1900, 2 F. 1187, 37 S.L.R. 911.
The defenders cited Paterson v. Presbytery of Dunbar, March 9, 1861, 23 D. 720: Crichton v. Dairy Myrtle Lodge of Free Gardeners Friendly Society, February 18, 1904, 6 F. 398, 41 S.L.R. 337; Winans v. Mackenzie, June 8, 1883, 10 R. 941, 20 S.L.R. 640; and Gall v. Loyal Glenbogie Lodge of the Oddfellows Friendly Society ( cit. sup.).
The pursuer joined the Society in the year 1896, and since that date, throughout a long series of years, he has paid his weekly subscriptions. In the month of February 1912 a dispute arose between him and the Society, turning on the question whether or no he had deceived the Society in a certain statement which he made regarding his age, and if so Whether that did not disentitle him longer to continue a member. His Society, in terms (I assume) of the rules, decided that he was not entitled to continue longer a member, and accordingly expelled him. But in accordance (again I assume in the absence of any statement or plea to the contrary) with the rules the pursuer appealed to the district committee, which considered his case, and on 4th April 1913 sustained his appeal and held him to be still a member of the Society.
With that decree in his hand the pursuer now maintains—and I think rightly maintains—that he is a member of this Friendly Society.
The Lodge (once more I assume) in terms of the rules appealed against the decision of the district committee to the grand executive, which, for a reason with which we are not here concerned, refused at first to entertain the appeal. Subsequently they changed their minds and intimated to the Lodge and to the pursuer that they were willing, if both parties consented, to hear and to decide the appeal, for that is the correct interpretation, in my opinion, of the letter of the 17th June 1913, which was read to us from the bar. In that state of mind, for aught that I know, the grand executive still remain. But, at all events, it is too late now to ask us to sist this case in order that the grand executive may have an opportunity of considering whether they ought to proceed to decide this appeal in the absence of the consent of both parties. The pursuer very naturally refused his consent. He was a member of the Society, holding a decision to that effect, and was not called upon therefore to litigate further upon a question which, so far as he was concerned, was finally decided. Accordingly he now asks, in terms of the right conferred on him by the 68th section of the Statute of 1896, to have the decision of the district committee enforced in the appropriate Court.
In the long run Mr Aitchison felt constrained to contend that the only reason why he should not have the decision of the domestic tribunal enforced was that the case of Gall v. Loyal Glenbogie Lodge of Oddfellows Friendly Society, 2 F. 1187, 37 S.L.R. 911, was decisive against it. Now that case at first sight bears a close resemblance to the present case. There the pursuer, a member of a friendly society, sought, in terms of the 68th section of the statute, to have a decree of a district executive enforced, and the Court refused his demand. But the ground on which the Court refused the demand was that to grant it would be to grant an inoperative decree. That appears quite plainly from an examination of the opinions of the learned Judges who pronounced the decision. Says the Lord Justice-Clerk—“The procedure not being taken in such a form that any operative judgment could be pronounced,” decree must be refused. Says Lord Trayner—“The Sheriff could not, I think, enforce his own order if the respondents refused obedience to it; and, in my opinion, he is not bound to pronounce any decree which may be disobeyed without his having the means of enforcing obedience
Page: 391↓
Now whether the decision of the Second Division in the case to which I have just referred is in accordance with the statute or not, it is quite clearly inapplicable to the present case, because no one disputes that if we grant decree in terms of the crave of the first alternative of the initial writ here we shall be granting an operative decree.
I hold therefore (first) that there is here before us a dispute within the meaning of the 68th section of the statute; (second) that that dispute has been decided by the rules of the Society, and that the decision so given is binding and conclusive on all parties; and (third) that this is the approbate statutory method of enforcing the decision of the district executive. Accordingly I am for recalling the interlocutor of the Sheriff-Substitute and granting decree in terms of the first alternative crave of the initial writ.
Now in these circumstances he applies to the Sheriff-Substitute, under the provisions of the 68th section of the 1896 Act, for enforcement of the finding in his favour. In my opinion he was entitled to get from the Sheriff-Substitute the necessary order, because this, I think, is clearly a dispute within the meaning of the 1908 Act, section 6.
The argument to the contrary was that the matter was still sub judice before the domestic tribunal, because it was said an appeal had been taken by the defenders to the executive committee and that that had not been exhausted. If that matter is not exhausted by the executive, the responsibility rests with the defenders themselves. There is no duty whatever upon the pursuer, who was successful and holds the judgment, to take any proceedings at all for having the judgment set aside. There are no proceedings at present pending before any other Court. Looking to the way in which the case has been presented by the defenders, I think it is too late now to take up a position that they are entitled to have the present proceedings sisted in order that they may take steps for having the matter further heard and disposed of by the grand executive committee.
The next point that was argued by the defenders was that the actings of the district committee were ultra vires, that they had pronounced their decision as if in the exercise of a discretionary power, and that the statute conferred no discretion upon them. As I understood the point, it was this, that under the rules a misstatement upon a matter of fact necessarily disentitles the pursuer from remaining a member. In regard to that I can only say that it is not raised upon record; there is nothing about that—there is no plea, and the question is not one that is before us. Accordingly the only point which requires attention is that the remedy is incompetent. That argument was founded upon the case of Gall. For the reasons explained by your Lordship in the chair, I think that this case is distinguishable from the case of Gall. What we are here asked to do is not to pronounce a decree ad factum præstandum, but to give a declaratory finding preliminary to the operative conclusion which asks for a decree for payment of money. There is no difficulty in working out that decree. Accordingly the present cannot be considered as ruled by the case of Gall. That being so I think the judgment of the learned Sheriff-Substitute is wrong and should be recalled.
The Court recalled the interlocutor of the Sheriff-Substitute, and decerned in terms of the first alternative claim of the initial writ.
Counsel for the Pursuer (Appellant)— Christie, K.C.— Lowson. Agent— W. M. Urquhart, S.S.C.
Counsel for the Defenders (Respondents)— Wilson, K.C.— Aitchison. Agents— Balfour & Manson, S.S.C.
