mination is final, whether or not there is any express provision to that effect, a member cannot in the absence of fraud invoke the aid of the courts against an adverse decision on a claim for benefits by a domestic tribunal vested with power to hear and determine the claim, and it makes no difference whether or not provisions exist declaring that such decision shall be final.

Unless the case of Grand International Brotherhood, L. E. v. Green, 210 Ala. 496, 98 So. 569, has touched upon this rule, the same is an open question in this state, under the provisions of § 13 of our Bill of Rights, if the latter can be applied to the fund to be maintained in another jurisdiction.

The constitution exhibited among other things recites that the brotherhood was organized in New York in 1883, the constitution amended at the convention held in Columbus, Ohio, in 1919; that the headquarters of the Grand Lodge shall be located in Cleveland, Ohio, unless otherwise ordered by any regular or special session of the lodge; that the organization known as the Brotherhood of Railroad Trainmen shall consist of "one Grand Lodge" and of such subordinate lodges as may hold legal and unreclaimed charters granted by the Grand Lodge. The officers and members of the Grand Lodge are thus provided for: "Section 2. The Grand Lodge shall consist of a president, assistant to the president, eight vice presidents, general secretary and treasurer, editor and manager of the official publication, a national legislative legislative representative, who is a vice president, a board of directors, consisting of the president, assistant to the president, three senior vice presidents, general secretary and treasurer, editor and manager, national legislative representative, and chairman of the board of trustees, a beneficiary board, consisting of the president, assistant to the president, and general secretary and treasurer, a board of trustees, consisting of three mem

bers, an executive board, consisting of five members, a board of insurance, consisting of seven members, and one delegate from each subordinate lodge."

Their jurisdiction and authority is thus declared: "Section 6. The Grand Lodge has exclusive jurisdiction over all subjects pertaining to the brotherhood, and its enactments and decisions upon all questions are the supreme law of the brotherhood. The Grand Lodge may hear and determine all matters of controversy which may be brought before it by appeal or otherwise, issue all charters, reprove and punish the misconduct of subordinate lodges, adopt laws and regulations of general application for the government of the brotherhood, and alter, amend, or repeal the same; control and regulate the unwritten work of the brotherhood; establish, print, and supply all charters, constitutions, official receipts, rituals, dispensations, withdrawals, transfer and traveling cards of the brotherhood, make such assessments for revenue as may be necessary to defray the expenses of the Grand Lodge, and do all things necessary to promote the welfare of the brotherhood."

It is within the general rules of the brotherhood that §§ 9 to 20, inclusive, occur. In 10 it is declared: "In the event of a strike. the president of the Grand Lodge shall be the recognized leader, and in conjunction with the general secretary and treasurer, and after having received the approval of the board of trustees, shall have authority to appropriate from the protective fund of the brotherhood, such moneys for legal advice and incidental expenses as in their judgment may be required for a successful prosecution for the strike. president and general grievance committee or board of adjustment have the authority to terminate a strike, but, in the event of a difference of opinion, and upon application of either party, it shall be the duty of the board of trustees immediately to meet with the president

The

(214 Ala. 565, 108 So. 456.)

and general grievance committee or board of adjustment and decide the question, and the decision of the board of trustees shall be final and binding."

Section 14 provides for the creation of a protective fund in "which all members shall participate," which is required to be used as "hereinafter provided;" the assessment is required of beneficiary members, to be remitted to the general secretary and treasurer "for the protective fund" (§ 15). Provision is contained in § 16 for the protective fund returns from subordinate lodges and penalties for nonpayment. Provision is made in § 17 for the levy by the president and secretary and treasurer, in conjunction with the board of trustees, of an additional or emergency fund. Section 18 provides for the payment of protective benefits under sworn statements showing the names, occupations, and length of service with the company "of all men under the jurisdiction of the lodge engaged in the strike." Section 19 provides when pay rolls are payable, with the proviso that, "in the event of a general strike caused by a concerted or general wage movement, the president, general secretary and treasurer, in conjunction with the vice presidents in charge of such strike, and the board of trustees, may determine the suspension of the payment of any or all strike benefits under this section, if in their judgment such action is deemed necessary for the protection of the brotherhood's funds."

It is apparent that the lex fori of the parties was not within the state. J. R. Watkins Co. v. Hill, 214 Ala. 507, 108 So. 244. If a contract is "good where made, it is good everywhere." New York L. Ins. Co. v. Scheuer, 198 Ala. 47, 73 So. 409; Galliher v. State Mut. L. Ins. Co. 150 Ala. 543, 124 Am. St. Rep. 83, 43 So. 833; Southern Exp. Co. v. Gibbs, 155 Ala. 303, 18 L.R.A. (N.S.) 874, 180 Am. St. Rep. 24, 46 So. 465; Southern R. Co. v. Harrison, 119 Ala. 539, 43 L.R.A. 385, 72

Am. St. Rep. 936, 24 So. 552; Western U. Teleg. Co. v. Favish, 196 Ala. 4, 71 So. 183; Scheible v. Bacho, 41 Ala. 423; Swink v. Dechard, 41 Ala. 258; Evans v. Kittrell, 33 Ala. 449; Thomas v. Degraffenreid, 17 Ala. 602; Goodman v. Munks, 8 Port. (Ala.) 84.

It should be said of Grand International Brotherhood, L. E. v. Green, 210 Ala. 496, 98 So. 569, that it was held that in a suit by a member of an unincorporated brotherhood for damages for his unlawful expulsion against that association it was not necessary for the plaintiff to allege. and prove that he had taken the judgment of the tribunal of last resort within the organization. To have held otherwise of a matter of legal right in the premises would be to allow one of the parties to be arbiter or judge of his own cause. which conclusion would be contrary to § 13 of the state Constitution and to the genius of our institutions. "Idem agens et patiens esse non potest"-"one cannot at the same time be the person acting and the person acted upon"-is a well-recognized legal maxim. Hughes, Law Restated, 183; Michoud v. Girod, 4 How. 503, 11 L. ed. 1076; Burton v. Unit

ed States, 202 U. S. 344, 50 L. ed. 1057, 26 Sup. Ct. Rep. 688, 6 Ann. Cas. 392; Magruder v. Drury, 235 U. S. 107, 120, 59 L. ed. 151, 156, 35 Sup. Ct. Rep. 77. And from which truth and analogy our decisions have proceeded. Meeks v. Miller, 214 Ala. 684, 108 So. 864. The concession is made in the Green Case that, if plaintiff had proceeded with the purpose of merely compelling his restoration to membership within the order, it would be necessary that he seek relief in the tribunal of final decision within the organization. State ex rel. McNeill v. Bibb St. Church, 84 Ala. 23, 4 So. 40; Medical & Surgical Soc. v. Weatherly, 75 Ala. 248. There was error in sustaining demurrer to pleas 5, 8, as amended, and 9.

After a due consideration of the

authorities, the power through the provisions of the brotherhood law to

make the decision of their own officials and tribunals

re

contract making conclusive in spect to the extraordinary protective fund and all its strike benefits under its law, we are of opinion is conclusive on the members, no fraud being charged. These institutions, operating for their members or a reasonable classification thereof for reasons of policy and that of its welfare, may adopt laws for their government, to be administered by themselves to its members, and require for the general benefit the surrender of no right that an individual may not waive. And he is bound by that authority and law

ANNOTATION.

Strike benefits. [Strikes, § 1.]

MISSOURI, KANSAS, & TEXAS RAILWAY COMPANY, Appt.,

V.

MAGGIE PERINO.

Oklahoma Supreme Court - March 16, 1926.

(118 Okla. 138, 247 Pac. 41.)

Railroads, § 131-obstructing view at crossing — effect.

1. If a railroad company, in the ordinary conduct of its business, leaves freight cars standing upon a sidetrack at or near a public crossing, so as to partially obstruct the view of persons passing over such crossing, such fact of itself does not render the company liable for accidents occurring at the crossing, but merely imposes a duty of greater care both upon the company and upon those using the highway. Paragraphs 4 and 5 of Missouri, K. & T. R. Co. v. Perino, 89 Okla. 136, 214 Pac. 907, are expressly

[See annotation on this question beginning on page 287.]

injury sustained should be left to the jury, where the evidence is conflicting, or where men of ordinary intelligence might differ as to the effect of the evidence on a point. The court should define proximate cause to enable the jury to determine whether the negligence alleged was the proximate cause, since, in order for negligence to create liability, it must be the proximate cause of the injury.

[See 22 R. C. L. 148-150; 3 R. C. L. Supp. 1240; 4 R. C. L. Supp. 1458; 5 R. C. L. Supp. 1196; 6 R. C. L. Supp. 1318.]

APPEAL by defendant from a judgment of the District Court for Coal County (Linebaugh, J.) in favor of plaintiff in an action brought to recover damages for the death of her son, alleged to have been caused by defendant's negligence. Reversed.

The facts as stated in the former This action, was brought by the defendant in error, as plaintiff below, against the plaintiff in error and Charles E. Schaff, receiver, as defendants below, to recover damages for the death of her son, alleged to have been caused by the negligence of the defendants.

A trial resulted in a verdict in favor of the receiver and in favor of the plaintiff against the defendant railway company for the sum of $1,750, upon which judgment was duly entered, and to reverse which the railway company has appealed.

Johnnie Perino, a son of the plaintiff, was killed by being struck by one of the defendant's passenger trains on Main street in the town of Lehigh, on the 13th day of May, 1915. It appears that the tracks of the defendant crossed Main street in the business section of said town; that at about 4 o'clock P. M. on the day of the accident, Johnnie Perino, who was between seven and eight years of age, and his sister Minnie, between thirteen and fourteen years of age, were on the way from their home to the postoffice; that it was necessary for them to cross the tracks of the defendant; that before reaching the tracks they met Agnes Olivie, a girl ten years of age, and the three children went on together;

opinion are as follows:

that at this time a north-bound passenger train was approaching the crossing, and Johnnie ran ahead of the girls and so close to the train that he was struck by one of the drive wheels of the locomotive or by the oil box on the tender, and his skull fractured, resulting in his death two days later.

The acts of negligence relied upon were that the defendant failed to provide and keep a watch at the place where the tracks crossed Main street; that it permitted cars to stand upon its sidetrack along, over, and across said street, thereby obstructing the view of Johnnie Perino, and preventing him from seeing the approaching train; that it failed to warn the deceased of the approach of the train by blowing the whistle and ringing the bell of the train as it approached such crossing; that the engineer in charge of the train failed to keep a lookout for persons approaching the tracks: that said train was operated at a dangerous rate of speed and at a greater rate of speed than 10 miles per hour in violation of the city ordinance; that the engineer failed to keep the train under control so that it could be stopped from running upon or over persons on said tracks at said crossing, and failed to stop the train when the de