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LANCASTER LAW REVIEW.

VOL. XXVII.] MONDAY, FEB. 21, 1910. [No. 16.

Common Pleas== Law'.

C. P. OF LANCASTER COUNTY. Maggie Tucker vs. George Shiffler Council, No. 177, Jr. O. U. A. M., (Inc.). Death benefits-Appeal to tribunals of the society-Member in arrears. Where the by-laws of a beneficial society merely state that a member of the order desiring to appeal from any action of the state or subordinate council to the higher tribunal of the order may do so, and there is nothing in the constitution or by-laws requiring such appeal, a member may bring suit without appealing.

The wife of a member of a beneficial society,

is not herself to be considered as a "member because she is a beneficiary.

Under a by-law of a beneficial society providing that a member in arrears was not entitled to benefits until a certain period after payment in full, a benficiary can recover for

the death of a member after the expiration of the non-beneficial period from a sickness which began before he expiration but after full payment of dues.

January Term, 1907. No. 50.
Rule for a new trial.

B. F. Davis for plaintiff and rule.
F. S. Groff contra.

holding that Maggie Tucker, the plain

tiff, should have taken an appeal from

the decision of the local lodge to a higher tribunal in the order. Maggie Tucker was not a member of the order, and, therefore, not bound by any rules or laws of the order; the defendant is a corporation.

We have carefully examined the laws. and constitution of the order and the by-laws of George Shiffler Council, and the amendments to them, and are convinced that we erred in holding that Section 9 of Law 28 required the plaintiff to exhaust all the remedies provided for in the order before she could preceed in a court of law to recover the amount claimed to be due her. It provides that where an appeal is once taken by a member, he and his beneficiaries must do this, but not having taken an appeal, the plaintiff was not required to follow it up by other appeals to the higher bodies of the order. Nor is there. anything in defendant's laws or by-laws or constitution, requiring either a member or his beneficiaries to appeal from the refusal of the subordinate council to pay benefits to which they claim they are entitled. No provision is made for the hearing of such a case. The only pro

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vision we have been able to find on the subject of appeal is Section 1 of Rule 28, which provides that "a member of the order desiring to appeal from any action of his state or subordinate coun

January 15, 1910. Opinion by HASS-cil, or sister state or subordinate counLER, J.

The plaintiff is the widow of Irvin R. Tucker, deceased, who was a member of George Shiffler Council, No. 177, Jr. O. U. A. M. the last several years of his life. Section 1, Article 12, of the defendant's by-laws, among other things provides that upon the death of any member of the council who is entitled to benefits it will pay to his widow the sum of $250. This payment having been refused to the plaintiff, she brought this suit to recover it. At the conclusion of the testimony we instructed the jury to find a verdict for the defendant, and are now asked to grant a new trial. The first reason is that the court erred in

cil may do so." On this subject it is said in Dobson vs. Hall, 1 D. R. 401, "It has been well settled, that a mere right to submit a claim to the tribunal of a society of this kind, and to appeal to another higher tribunal of the same society, does not, in any degree, abridge the right of the claimant to appeal to the courts to compel payment of what is justly due to a member, and is unlawfully withheld. The courts are as open to him as to anybody. In the absence of any provision in the constitution making his failure to appeal a bar to an action at law, in the absence of any compulsory provision whatever upon the subject, it is perfectly clear that the plaintiff was not bound to take any appeal to the

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supreme castle but was entirely at liberty | weeks in arrears for weekly dues and

to bring his suit here to compel the defendants to pay what they owe him.

In addition to this, the present plaintiff, although he became, upon the death of his son, by reason of his son's membership, a beneficiary of the society, was never a member, and so was under no obligation to address himself to their tribunals to procure payment of the money which they owed him, or to forego the remedies at law which are provided for every suitor." See also McMahon vs. Watermen's Beneficial Association, 17 Philadelphia 216; Penn Lodge No. 105, Knights of Pythias vs. Chalfant, 1 Chester County 133. In fact it does not appear in the section referred to or elsewhere that any right is given to the beneficiary to appeal. It is only in cases where an appeal is made necessary by the laws of an organization such as this that it is a pre-requisite to the right of proceeding at law. Beeman vs. Supreme Lodge, Shield of Honor, 29 Sup. Ct. 387, 215 Pa., 627; Wick vs. Fraternities Accident Order, 21 Sup. 507, and Myers vs. Fritchman, 6 Sup., 580. Here the plaintiff, even though Section 9 of Law 28 shows that, as a beneficiary, she was within the meaning of the word "member ", and we do not think it does, does not appear to have desired to appeal, and not having appealed, was not required to follow it up in all the higher bodies of the organization before she could commence an action in this court.

We are of the opinion too, that we erred in the second reason why we directed judgment for the defendant. This reason was based upon Article 10, Sections 4 and 5 of the Constitution, which are as follows: (4) "Any brother suffering himself to become indebted to the Council for weekly dues for thirteen weeks shall not be entitled to benefits until four weeks after all such arrearages have been paid in full to time of settlement, and for twenty-six weeks, for six weeks, and for thirty-nine weeks, for eight weeks, and for fifty-two weeks or over, for thirteen weeks after all such arrearages have been paid."

(5) "Any brother who is thirteen

shall become sick or disabled, and apply for the benefits of this Council shall not be entitled to receive any of said benefits, during such suckness or disability, nor shall he in case of death, be entitled to funeral benefits."

Nothing in either of these Sections, prevents either a member or his beneficiary from getting benefits during any sickness that occurs immediately after he has paid up his dues in full, or death resulting from such sickness. If he was in arrears with his dues fifty-two weeks, and got sick one week after he had paid his dues in full, he would have to wait twelve more weeks until entitled to benefits. But if he continued sick after that, even with the same illness, he would be entitled to them. So if the death occurred from such sickness, after the twelve weeks, his widow was entitled to the death benefits. It is only in cases where the sickness began before the dues were paid up that no sick or death benefits shall be paid during it or resulting from it.

In holding as we did, that the plaintiff could not recover, because the death of her husband resulted from an illness that began during the period he was deprived of benefits, by reason of his having been in arrears with his dues, though it began after his dues were paid in full, and the death occurred after the time fixed when he was entitled to them, we were in error. The construction contended for and which we followed was that as the sickness, which resulted in death, began after the payment of dues in full, but before the period her husband was compelled to wait to be entitled to benefits, is not warranted by the language used. Entwistle vs. Lotwig, 17 D. R., 930, relied on by the defendant does not apply, as in that case there was no question of construction of the constitution or by-laws of the society, only whether it was a reasonable construction. The plaintiff's husband was in arrears on January 3, 1906, to the amount of $4.40, but he paid up in full during that month and was in good standing. According to the plaintiff's testimony he was taken sick about the

middle of March, 1906, with the illness that caused his death on September 19, 1906. In taking the case from the jury we erred, and must grant a new trial. The rule for a new trial is made absolute.

Rule made absolute.

C. P. OF LANCASTER COUNTY.
Reddig vs. Eberly.

Action for alienation of wife's affection
-Evidence-New Trial.

there was much testimony in the casethat would have the effect of mitigating. them.

Courts have the power to reduce verdicts or to grant new trials where a verdict is too large or too small. A trial judge, it has been said, is the thirteenth juror, and when he believes that a verdict has been arrived at by the adoption of an erroneous measure of damages or a mistake in computation or has been influenced because of a friendly or hostile feeling of a jury for or against either of the parties he should not hesitate to set it aside. He, however, is no more competent to judge of the amount of injury which the plaintiff has sustained than are any of the jurors, and he would be usurping the functions of the jury if without good and sufficient reasons he should grant a new trial or set aside a verdict when there is testimony that justifies it: Robb vs. Car-No statement of a person can be admitted negie, 145 Pa., 324; Stauffer vs. Readin evidence without an opportunity to crossing, 208 Pa., 436; Mellinger vs. Railexamine by the party against whom such statement is to be used, except in case of conspiracy.

admissible.

In an action for damages for debauching and alienating the affections of plaintiffs' wife, her declarations at the time, in the absence of her husband, as to why she had left him, are In such case, the plaintiff having shown by a witness that the witness had told the defendant that the plaintiff's wife had signed a written confession of guilt with him and what he then said, the court properly refused to allow the plaintiff to further prove that said

confession was lost and what its contents were.

The court will not grant a new trial for insufficiency of the verdict where there was

nothing to show that the jury were improperly

influenced or wrong in their computations or measure of damages and there was testimony in mitigation of damages.

May Term, 1906. No. 3.

Rule for a new trial.

B. F. Davis for rule.

road, 18 L. L. R., 369; Carpenter vs. City, 22 L. L. R., 33. As none of these reasons exist in the present case it would be an improper assumption of power on our part to set aside the verdict by grant-ing a new trial because the plaintiff suggests that it is insufficient.

2. The second reason is that the court erred in not allowing the plaintiff to prove that a confession signed by Mrs. Reddig, the wife of plaintiff, was shown

W. U. Hensel and Harvey B. Lutz to the defendant and the defendant after

contra.

January 15, 1910. Opinion by HASSLER, J.

This is an action to recover damages for debauching plaintiff's wife and for alienating her affections from him. The trial resulted in a verdict for the plaintiff, who has filed six reasons for a new trial.

1. The first is that the verdict was grossly insufficient. This was a matter for the jury who were instructed as to the proper measure of damages, and as no complaint is made of such instructions we assume they were proper. We are not prepared to say that the damages assessed by the jury are insufficient, as

wards endeavored to obtain possession of the same from Clarence Reddig, witness called by the plaintiff.

The record of the trial does not bear out the statement contained in this reason. On page 32 it shows that Clarence Reddig, a witness, told the defendant that Mrs. Reddig had signed a confession of her guilt with him; that he said if she has made a confession, that settles. it, and that then and subsequently het endeavored to obtain possession of it. The plaintiff then endeavored to prove that the written confession was lost, and what its contents were. This is no doubt what he means to complain of, for we refused to allow it. Our reason for doing so was that we are of the

opinion that what she said in such state- | christ 's. Bale, 8 Watts, 355, it is said,

ment could not be used against the defendant. It could be shown she made it, and that he was told of it and what he did and said when such information was given him. His silence at such time, or even if present when the confession was made would be construed to be a confession by him of his guilt, and what he said and did then and subsequently might show his guilt. But it is a wellestablished principle of law that no statement of a person can be admitted in evidence, without an opportunity to cross-examine by the party against whom such statement is to be used, except in case of conspiracy and then only when there is evidence of conspiracy and the statement was made in furtherance of it and while it continued. If the rule were otherwise, so that a confession of a wife, made in the absence of a defendant, could be used in evidence against him in an action by the injured husband for damages, collusions between wives and husbands would render verdicts against such defendants almost certain. She might have been called as a witness by the plaintiff and testified to exactly what she stated in the confession, but then opportunity would have been given to cross-examine her, and the jury would have the opportunity of judging of the weight to be given to her testimony, but if it were admitted, as it was offered, the jury could consider what she said without the chance of observing her while testifying and without the defendant having an opportunity of crossexamining her. It was hearsay evidence. 3. The third reason is, the Court erred in allowing the defendant and several of his witnesses to prove alleged declarations of the wife against the husband as to the cause of their separation.

There is no question that in Pennsylvania a wife is not a competent witness against her husband, nor are her declarations against him ordinarily admissible in evidence in either civil or criminal proceedings. There are some exceptions however to this rule, and such a declaration of a wife as is complained of here is one of them. This has been decided by our Supreme Court. In Gil

"The gravamen of the action is the enticing away the plaintiff's wife. There was no direct and positive proof of any combination between the defendants for the purpose, but the jury was asked to infer their participation in her abduction, from their acts, declarations and conduct before, at the time and after her departure from the dwelling of her hushand. To disprove the allegation in the declaration, that the wife deserted her husband by the advice and at the procurement and solicitation of the defendants, they offered to prove, by her attending physician, that about ten days before Mrs. Bale left her husband, she complained that he had treated her badly; that she showed marks on her arms which she said she had received from his beating her; and asked him what she should do. That he advised her to go to her father's and leave her husband. * * * The evidence was very pertinent; for, if Mrs. Bale left her hus band in consequence of ill treatment, it was an answer to the plaintiff's action. *** It is a general rule that the declarations of a husband or a wife cannot be received in evidence against each other, either civilly or criminally. But this rule cannot be extended to all possible cases; for where no confidence has been violated, the law has admitted of some exceptions. Thus in Aveson vs. Lord Kennard, 6 East, 188, *** Lord Ellenborough replied: 'It is not so clear that her declarations, made at that time, would not be evidence under any circumstances. If she declared at the time that she fled from immediate terror of personal violence from her husband, I should admit the evidence, though not if it were a collateral declaration of some matter which happened at another time.' For the same case, in illustration, his lordship referred to Thompson and Wife vs. Freeman, Skinner, 402, where, in an action by the husband and wife for wounding the wife, Lord C. J. Holt allowed what the wife said immediately upon the injury received, and before she had time to devise anything for her own advantage, to be given in evidence as part of the res gestae. The motives which

induced Mrs. Bale to desert her husband, are the matters in controversy; and his conduct about that time has a material bearing on the issue. The defendants allege that she left him, not for the cause assigned in the declaration, but because of his wicked and brutal conduct. This, in most cases, cannot be shown, except by her declarations made at the time to her relations and friends. Few persons are so lost to every sense of propriety as to act thus in public. The treatment of which she has most reason to complain, is usually acted in secret, and can only be known from her complaints, or, as here, from marks of violence on her person. When an act is done to which it is necessary to ascribe a motive, it is always considered that what is said at the time, from whence the motive may be collected, is part of the res gestae. It was necessary to explain the reason. *** When the conduct of the wife is in question, her declarations have been held admissible for her husband in an action against him. Thus in an action for necessaries supplied to the wife, the defense being that her husband turned her out of doors for adultery, her declarations as to her adultery, made previously to her expulsion, were admitted." The reasoning in that case so clearly applies to this one that it is unnecessary to further comment upon it, as it clearly shows the testimony was properly admitted. See also Keath vs. Shiffer, 25 L. L. R., 253 and 37 Sup., 573.

4. The fourth reason is, the Court erred in allowing H. F. Eberly, the defendant, to testify that the plaintiff de

manded $5,000 from him some time before the suit was brought, by reason of the alleged relations between Eberly and the plaintiff's wife. There was no such testimony. In his cross-examination of the defendant in regard to a conversation he had with Samuel Shober, the plaintiff brought out the fact that Shober said the plaintiff had told him that he had demanded $5,000 from the defendant. This was responsive to the questions. The defendant did not testify that any such demand was made.

5. The Court erred in refusing to allow M. B. Reddig to contradict the

testimony of H. F. Eberly that he demanded $5,000 from Eberly for settlement of his claims by reason of Eberly's alleged intimacy with his wife.

H. F. Eberly did not so testify, so that the offer to contradict it was clearly improper.

6. A careful examination of the record fails to show that the plaintiff offered to prove what, he complains of in his sixth reason to be error because of our refusal to allow it.

There being nothing in any of the reasons which would justify our granting a new trial, we discharge the rule for a new trial.

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March Term, 1907. No. 9.

Petition of foreign guardian to remove

property from this jurisdiction. W. H. Kready for petition. H. R. Fulton for estate.

February 3, 1910. Opinion by SMITH, P. J.

By a decree of this Court certain moneys were awarded to Daniel D. Lefever, a son and legatee of the testator. By proceedings had in the State of Nebraska Daniel D. Lefever was on March 12, 1907, adjudged insane, and W. H. Stewart of the County of Fillmore and State of Nebraska is his duly-constituted "guardian." This proceeding is on his petition asking for the removal of prop

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