Dunn v. Railroad. was introduced showing the condition of the plaintiff's throat-his principal injury. There was no motion made to strike it out after it was introduced. There was no request asked whereby it was or should be eliminated from the consideration of the jury. There was no exception taken to the charge of the court on this subject. The nearest assignment that approaches it is the one that the court should have directed a verdict. But I take it the court cannot direct a verdict merely because the injury was temporary and not permanent. However, I think there is evidence in the record from which it may be said that plaintiff's condition of the throat was due to his injuries received at the. time of the accident, and that it is of a permanent nature. It appears from plaintiff's testimony that when he fell he struck his chin on a tie or on a bumper of the car. He and other witnesses said that his neck below the chin was swollen-some said as large as a fist-and discolored. Plaintiff said this swelling and discoloration disappeared from his neck, during which time he had been to see a Dr. Taylor, the company's doctor. Then he said: "Not long after I quit going to see Dr. Taylor, my neck swelled up quite large, and then the swelling disappeared, and then, about six weeks after the accident, I first noticed this sore develop on my throat. The sore came some little time before it commenced to discharge. This condition of my throat developed something like two months after the original swelling and discoloration had gone away.” There was no dispute but what the plaintiff had a running sore near what is termed the "Adam's apple. The physicians upon the part of the plaintiff testified that the pus discharged at the Adam's apple was due either to the diseased condition of the bone at the base of the tongue, or glands in the mouth or throat. The fistula spoken of is nothing more, so to speak, than a mere drain pipe which nature had provided for carrying away the pus and poisonous matter created from the diseased bone or affected glands. While physicians Dunn v. Railroad. stated that a surgical operation would cure the fistula on his throat, yet other physicians stated that the plaintiff "has an enlarged gland and a running sore on his throat. The glands of his mouth are inflamed and enlarged. I think there is a chronic condition of the throat that cannot be cured nor improved." "I think that, even if this fistula was cleared up and cured, that the glandular trouble would still exist. I am certain that the gland cannot be cured. I am not certain about the rest." Dr. Conroy, the witness quoted by the Chief Justice, also stated: "The probabilities of a cure by an operation would depend upon where the fistula runs to, and what would have to be removed." The physicians upon the part of the appellant claimed that the plaintiff's throat condition and the discharge were due to catarrhal trouble, which was denied by the plaintiff and his witnesses. Taking the testimony of plaintiff's physicians, there seems to be evidence that the diseased condition of the bone or affected glands is incurable, and therefore permanent. It was then for the jury to say whether that condition was traceable to the injury received at the time of the accident. Plaintiff had testified that prior to his accident he was healthy and had no throat or catarrhal trouble whatever. The jury may well have come to the conclusion that the diseased condition of the bone or glands was due to the violence or injury inflicted upon the plaintiff at the time of the accident, and that, though the swelling and surface discoloration of the throat had disappeared, still there would be no discharge from the said diseased condition of bone or glands until about the time it actually did appear-six or eight weeks after the accident. May the bone at the base of the tongue, or the glands in the mouth or throat, become diseased or affected from violence, and, if so, may pus gather and be discharged therefrom, and how soon after the infliction of violence may that be expected to occur, are not at all matters of law. These Pearson v. Anderburg et al. things are mere questions of fact, depending upon a variety of conditions and circumstances. My conclusion is, therefore, that this judgment ought to be affirmed. LOUISA PEARSON, as Administratrix of the Estate of MARTIN PEARSON, Deceased, Respondent, v. T. E. ANDERBURG, ANDREW ANDERSON, JOHN ALLSOP, JOSEPH BURKINSHAW, J. A. BUTLER, JOHN BAKER, CHARLES CUSHING, A. J. CUSHING, JAMES M. CUSHING, D. A. DROWN, R. GARRATT, ORLANDER HARDCASTLE, EMIL HARTVICKSON, JOSEPH HEIMRICK, JULIUS HEUSSER, P. O. HAMMER, H. P. JOHNSON, JAMES LANE, OLAF LARSON, JOHN LATIMER, T. E. MARRIOTT, GEORGE MARRIOTT, PETER NICKELS, C. F. NELSON, JAMES NELSON, D. L. PENROD, ARTHUR PERRY, JOHN RIDEOUT, D. E. RIDEOUT, JR., A. G. ROBERTSON, A. STUART, W. T. VINCENT, T. L. WILLETT, WM. R. SOFFE, DAVID SHIELDS, and JOHN MARRIOTT, Appellants. 1. No. 1574. (80 Pac. 307.) Insurance: Sick Benefits: Actions to Recover: Survivorship. A cause of action in favor of a member of a beneficial association to recover sick benefits payable to him during his lifetime survives his death, and may be brought by his administrator. 2. Same: Funeral Expenses: Right of Action. An administrator of a deceased member of a beneficial association may recover an allowance for funeral expenses provided for by the laws of the association, but which are not declared payable to any particular person. Pearson v. Anderburg et al. 3. Same: Action: Parties: Unincorporated Beneficial Association. Where a complainant, naming as defendants the individual members of an unincorporated beneficial association alleged, and the evidence showed, that the association as such had trust funds in its possession, which were collected from its members to pay obligations of the character of the one in suit, and it was sought to subject those funds to the payment of such obligation, and the judgment as entered could only be satisfied out of the property of the association, the proceedings were not subject to the objection of attempting to hold the members of the association personally liable for the association's debts. 4. Same. A voluntary association cannot be sued in its name as such, but can be brought into court only in the name of its members, or, if they are too numerous, a few of them may be made defendants to represent the interests of all. 5. Same: Restriction of Actions: Tribunals of Order. While members of a voluntary association may restrict themselves as to matters incidental to the operation of the association to remedies before tribunals created by the association, such restriction cannot extend to the right to benefits due the members under contract with the association, so as to require them to exhaust the remedy provided by the tribunals of the association as a condition precedent to suing for such benefits.1 6. Same: Irregularities of Proceedings. The action of a beneficial association, which knew of the illness and mental derangement of a member, in dropping such member from its rolls without his knowledge or consent, and without representation or hearing, because of his failure to pay dues during a time when it failed to pay the sick benefits to which he was entitled, was so irregular as to be grossly unjust, and did not preclude the member's personal representative from suing to recover the benefits notwithstanding a stipulation of the contract of membership requiring the member to submit his grievances to the tribunals of the association without resorting to the courts. 7. Same: Forfeiture: Estoppel. A beneficial association, which, with knowledge of the sickness and mental derangement of a member, accepted arrearages 'Daniher v. Grand Lodge A. O. U. W., 10 Utah, 110, 37 Pac. 245. Pearson v. Anderburg et al. of dues which placed him in good financial standing, and received monthly dues for six months thereafter, was estopped to insist on a forfeiture on account of such arrearages. (Decided March 20, 1905.) Appeal from the Third District Court, Salt Lake County.-Hon. T. W. Stewart, Judge. Action to recover sick benefits. From a judgment in favor of the plaintiff, the defendants appealed. MODIFIED AND AFFIRMED. S. W. Darke, Esq., and E. D. Hoge, Esq., for appellants. Messrs. Frick & Edwards for respondent. STRAUP, J.-Defendants are members of a voluntary association known as and called "Sandy Lodge, No. 11, I. O. O. F., Sandy, Utah." One Martin Pearson was a member of said lodge from 1888, and, as claimed by the plaintiff, up to the time of his death, which occurred in May, 1901. Plaintiff, the widow and only heir of said deceased, was appointed administratrix of his estate, and, as such, brought and maintained this action against the said defendants, as members of said lodge, to recover sick benefits due the said deceased during his lifetime, from July 1, 1898, up to the time of his death, and for $75 funeral expenses. The case was tried before the court without a jury. Plaintiff had judgment, and defendants appeal. It is urged by appellants that the plaintiff, in her capacity as administratrix, had no right to maintain the action. Under the laws, rules, and regulations of the lodge, the sick benefits, if at all, were due and owing 28 Utah-32 |