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Trespass on the case for personal injury | tions in the declaration, simply shows that the

by Loretta McElroy against Luella W. Capron, individually, and as executrix of Herbert S. Capron, deceased. Heard on demurrer to plea. Demurrer sustained.

defendants were husband and wife, and that they were together at the time of the commission of the wrong complained of. These facts, however, which are admitted by the

Argued before STINESS, C. J., and TIL- demurrer, make out only a prima facie case LINGHAST and ROGERS, JJ.

Terrence M. O'Reilly, for plaintiff. William H. Sweetland, for defendant.

TILLINGHAST, J. The plea which the defendant, Luella W. Capron, interposes as a bar to this action, in so far as it seeks to hold her individually responsible for the negligence complained of, is that at the time of the alleged wrong and injury participated in by the testator, Herbert S. Capron, she was his lawful wife. To this plea the plaintiff demurs on the grounds (1) that the said defendant, Luella, does not, in her plea, allege that at the time of committing the said wrong and injury she was under the coercion of her said husband; (2) that said plea is not conclusive, but merely raises a presumption of law, which is only a prima facie presumption; and (3) that the matter set up in said plea can be shown under the plea of the general issue. The declaration alleges that, in the lifetime of said Herbert S. Capron, he and said Luella negligently caused a buggy in which they were driving to be driven against a bicycle upon which the plaintiff was riding, whereby she was injured.

The main question raised by the demurrer is whether a married woman can, in any event, be held liable for a tort committed by her in the presence of her husband. We think this question must be answered in the affirmative. At the common law the husband and wife are jointly liable for such of the wife's torts committed during coverture as fall within the following classes, namely: (1) Where the husband is absent and had no knowledge of the intended act, as in Head v. Briscoe, 5 Carr & Paine, 484; (2) where the husband is absent, but the tort is committed under his direction and at his instigation, as in Handy v. Foley, 121 Mass. 259; and (3) where the husband was present, but the wife acted of her own volition, as in Cassin v. Delany, 38 N. Y. 178. See Kosminsky v. Goldberg, 44 Ark. 401. The statement in 2 Kent, Com. 149, cited by counsel for defendants in support of his plea, viz., that if the wife commits a tort "in his company or by his order," he alone is liable, is too broad, and is not sustained by the current of authorities. Handy v. Foley, supra; Kosminsky v. Goldberg, supra. Where the tort is committed in the presence of the husband, and by his command or coercion, he alone is liable. To exempt her from liability, therefore, requires the concurrence of his presence and command, or coercion. Cassin v. Delany, supra.

The plea which is demurred to in the case at bar, taken in connection with the allega

in favor of the defendant Luella, and hence are not conclusive as to the plaintiff's right of action against her. That is to say, under the facts shown in the pleadings, a prima facie presumption arises that the defendant wife acted under the control and coercion of her husband in committing or participating in the commission of the tort relied on by the plaintiff. Said presumption, however, being only a prima facie one, may be rebutted in evidence by showing that the wife was the instigator of the wrong, or the more active party in the commission thereof, or that the husband, although present, was incapable of coercing her. Marshall v. Oakes, 51 Me. 308; State v. Shee, 13 R. I. 535; State v. Boyle, Id. 537; Schouler's Dom. Rel. (4th Ed.) § 75; Am. & Eng. Ency. of Law (2d Ed.) 899, and cases in note 7. The plea, therefore, is insufficient as a bar to the action, in that it fails to allege that the wife was acting under the control, direction, or coercion of her husband. Ency. Pl. & Pr., vol. 10, p. 273; Wagener v. Bill, 19 Barb. 321; Burnett v. Nicholson, 86 N. C. 99; Clark v. Bayer, 32 Ohio St., at page 311, 30 Am. Rep. 593.

The decisions of this court in Simmons v. Brown and Wife, 5 R: I. 299, 73 Am. Dec. 66, and in Baker v. Braslin, 16 R. I. 635, 18 Atl. 1039, 6 L. R. A. 718, recognize and adopt the same general rule as that above stated as to the joint liability of husband and wife in such cases. In the latter case, Durfee, C. J., in delivering the opinion of the court, said: "It is true that, where husband and wife join in committing a tort, the presumption is that she acts under marital coercion; but this presumption is prima facie only, and may be rebutted by proof that she acted of her own free will."

But the defendants' counsel contends that under Gen. Laws R. I. c. 194, § 14, the husband is solely liable for a tort in the commission of which both he and his wife participated. Said section provides that "the husband shall not be liable by reason of the marital relation for any contract made or for any tort committed by his wife prior to their marriage; nor shall he be liable for any contract made after marriage by his wife; nor for torts committed by his wife after marriage, unless he participates therein or coerces her thereto." The evident purpose of this statute is to restrict and lessen the commnonlaw liability of a husband both for his wife's contracts and torts. It relieves him of all liability for her contracts, whether antenuptial or postnuptial. It also relieves him from all liability for her antenuptial torts, and leaves him liable only for those committed by her after the marriage, in which he participates, or which he coerces her to com

mit. The statute, as we read it, simply leaves the husband subject to the same liability as to such torts as he was under at the common law. That is to say, where he simply participates in the tort, he is jointly liable with her; and, where he coerces her in the commission thereof, he is solely liable. To hold that he alone is liable simply because he is present and participates in the wrongful act would be to extend, instead of lessen, his common-law liability in a case like the one before us; and we do not think the statute was intended to have this effect. Moreover, if the intention of the general assembly had been to make the husband solely liable in cases where he participates with his wife in the commission of the wrong, we think they would have said so in plain terms. In this connection it is pertinent to remark that the evident intent of modern legislation in this state-and such seems to be the tendency of legislation in other states-is to place a married woman upon practically the same basis or plane with regard to legal rights and liabilities as if she were sole and unmarried. And hence, in the construction of statutes relating to such rights and liabilities, we think that, in so far as may be, consistently with the language used therein, they should be so construed as to carry out the general purpose aforesaid.

As the demurrer to the plea in question must be sustained on the first two grounds assigned by plaintiff's counsel, there is no occasion for us to consider the third ground, namely, that the matter set up in the plea can be shown under the plea of the general issue. But see, as bearing upon this question, Goodell v. Bates, 14 R. I. 65.

The plaintiff's demurrer to the special plea in bar is sustained, and the case remanded for further proceedings.

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TROVER-CONVERSION OF GOODS-CONSIGNMENT FOR SALE.

1. Though, in trover, the court finds as a fact that goods shipped by plaintiff to defendant were consigned merely to be sold to third persons, and not as a delivery consummating a sale to defendant himself, the latter is not liable as for a conversion of a portion sold to third persons merely because he has defended the action by contending that the goods were not consigned, but that there was an actual sale to him.

Exceptions from Sixth district court.

Trover by Stoneman & Grossman against John H. Lyons. Decision for plaintiff's granting insufficient relief, and they except. Exceptions overruled.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

T. M. O'Reilly, for plaintiffs. John I. Devlin, for defendant.

TILLINGHAST, J. This is trover for the conversion of certain merchandise which the plaintiffs claim was delivered to the defendant on consignment, and comes here upon exceptions to the rulings of the district court of the Sixth judicial district. The plaintiffs, who are wholesale dealers in groceries and provisions, claim that they consigned three lots of merchandise to the defendant, who was a retail grocer; that the first consignment was paid for by the defendant; and that the second and third consignments, valued at $36.50, were delivered April 30 and May 15, 1902, and have not been paid for. On May 22, 1902, the defendant made a general assignment for the benefit of his creditors, whereupon the plaintiffs made demand for the goods found in defendant's store which they claimed belonged to them, of the value of $14.48, and for the balance of the goods alleged to have been consigned, which the defendant had sold. The district court found, upon the evidence submitted, "that the plaintiffs had proved that the goods were consigned, that a demand therefor had been made, that the plaintiffs were entitled to decision for the value of the goods unsold at the time of the demand, and that the plaintiffs were not entitled to recover in this action the value of the goods sold." To this last ruling the plaintiffs took an exception, claiming that the conversion took place upon the assumption by the defendant of ownership under his claim (which he made at the trial) of buying the goods on credit and selling them for his own account. In other words, the exception is based upon the plaintiffs' contention that a decision in their favor should have been rendered for the entire value of said second and third consignments ($36.50), on the ground that under the defendant's own testimony the conversion took place upon his assumption of ownership of said goods in himself, and the sale of the goods under such assumption; that, if any act was needed other than the mental assumption of ownership, the subsequent sale supplied such necessary act.

The main question of fact presented for decision in the district court was whether the goods alleged to have been converted by the defendant were consigned to him by the plaintiffs for the purposes of sale, or were sold to him outright. The testimony bearing upon this question was conflicting; that offered by the plaintiffs tending to prove that the goods were consigned to the defendant, while that offered by the latter tended to prove a sale in the ordinary course of busiThe court found in favor of the plaintiffs upon this issue, and, a demand for the goods remaining in the defendant's hands at the time of making his assignment, and a refusal to deliver the same having been proven, gave decision for the plaintiffs for the value of the goods thus held by the defendant. This finding, being purely one of fact, cannot be reviewed by this court on exceptions. And

ness.

as it is clear that upon the finding made by the district court its decision was correct, the plaintiffs have no standing in this court.

The only exception taken was to the ruling that trover could not be maintained for that part of the goods in question which the defendant had sold. And that this ruling was correct, upon the finding of fact aforesaid, we fail to see how there can be any question. The goods having been consigned to the defendant for sale, as found by the court, his act in selling them not only constituted no conversion thereof, but was clearly within the scope of his authority as the plaintiffs' consignee and agent. And the mere fact that he testified at the trial that he bought the goods of the plaintiffs, instead of receiving them on consignment, and sold them as his own, did not render him guilty of the conversion of those sold. His sole defense to the action was that the goods were his, and not the plaintiffs'. And for us to hold that by putting in such a defense he necessarily proved himself guilty of the conversion of the goods sold, simply because the court found against him on the issue of title thus raised, would certainly be an anomalous decision.

If

a preconceived design on the part of the defendant to obtain the goods in question, whether by consignment or purchase, and not pay for them, had been shown, the plaintiffs would doubtless have had a good cause of action, as such conduct would clearly have been fraudulent. Mulliken v. Millar, 12 R. 1. 296; Swift v. Rounds, 19 R. I. 527, 35 Atl. 45, 33 L. R. A. 561, 61 Am. St, Rep. 791. See, also, Hassett & Hodge v. Cooper, 20 R. I. 585, 40 Atl. 841. But nothing of this sort appears, or is even claimed on the part of the plaintiffs, and hence we see no ground upon which they can recover in this action for the goods sold by the defendant.

.

Exceptions overruled, and case remanded to said district court for judgment on its decision.

(24 R. I. 560)

SPINK v. NEW YORK, N. H. & H. R. CO. (Supreme Court of Rhode Island. Dec. 29, 1902.)

RAILROADS-FIRES-LIABILITY.

1. Act June 25, 1836, amending the charter of the N. Y., P. & B. R. Co., and providing in section 2 that the company should be liable to property owners for the burning of "houses, wood, bay, or any other substance whatever,' caused by fire from its engines, is broad enough to cover all kinds of property so burned.

Action of debt by Daniel Spink against the New York, New Haven & Hartford Railroad Company, brought under Act June 25, 1836, amending the charter of the New York, Providence & Boston Railroad Company, of which latter road defendant was lessee. Demurrer to declaration overruled.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

William B. Greenough and James C. Collins, Jr., for plaintiff. John. W. Sweeney, for defendant.

PER CURIAM. The terms of the act making the defendant liable for damage caused by fire from its engines, embracing the burning of "houses, wood, hay, or any other substances whatever," are broad enough to cover all kinds of property so burned. The demurrer to the declaration is overruled.

(24 R. I. 550)

PEPIN v. SOCIETE ST. JEAN BAPTISTE. (Supreme Court of Rhode Island. Dec. 19, 1902.) BENEVOLENT SOCIETIES-EXPULSION OF MEMBERS-TRANSACTION OF BUSINESS-WORK OF CHARITY-SUNDAY LAW.

1. A member of a mutual benefit association cannot be expelled arbitrarily or without proper

cause.

2. The member is entitled to notice and a specification of the charges, and an opportunity for defense.

3. A member of a mutual benefit association who defaults on a hearing of charges against him can be expelled on evidence tending to establish his guilt.

4. Where a member of a mutual benefit association has actual notice of the particular charge against him for which it is sought to expel him, such charge need not be formally stated.

5. The hearing of charges and expelling of a member by a benevolent association does not constitute the exercise of judicial power, but is part of the business of such society, and may be done on Sunday.

6. A benefit association whose object is not profit, but to relieve members and their families in case of sickness and death, is a charitable organization, and the transaction of its business is a work of necessity and charity, and can be done on Sunday.

Mandamus by Marjorique Pepin against the Societe St. Jean Baptiste. Demurrer to answer overruled.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

Arthur M. Allen, for petitioner. Archambault & Gaulin, for respondent.

STINESS. C. J. The petitioner asks for a writ of mandamus to restore him to membership in the respondent society, a corporation, from which, he avers, he has been illegally and unjustly expelled. The respondent, in its answer to the alternative writ, sets up that a complaint was made against the petitioner, which was duly heard before a committee, he being present, and referred to the society; that on September 18, 1898, the committee reported to the society the charge that the petitioner had attempted to defraud the society by drawing, or trying to draw, benefits, under false representations; that, by the record of the society, the petitioner's demand for benefits was laid upon the table,

2. See Beneficial Associations, vol. 6, Cent. Dig. SS 14, 15.

and the secretary was ordered to notify the petitioner to appear before the society to answer said charge, and that he would be stricken out of the list of membership should he fail to exculpate himself; that notice was sent to him by mail to appear on Sunday, October 2, 1898, specifying the charge; that on said day the petitioner failed to appear and to make any defense against said charge or accusation, as requested by said notice; that the accusation was then and there regularly brought before said society, and, said Pepin failing to appear and exculpate himself, and evidence being produced tending to establish the guilt of said Pepin, it was then and there decided by said society that said Pepin was guilty of said accusation, and he was then and there, by a vote regularly passed, expelled from membership. The by-laws provide that those who work against the interests of the society may be stricken off the roll of membership. The answer avers that the accusation was brought in good faith, and not for the purpose of injuring the petitioner or of avoiding the payment of benefits to him; that he was given full opportunity to appear and to offer evidence; and that he was expelled after it had been judicially determined by the society, upon evidence, that he was guilty of the offenses charged against him. The petitioner demurs to the answer.

It was held, in Pepin v. Societe, 23 R. I. 81, 49 Atl. 387, and in Lavalle v. Societe, 17 R. I. 680, 24 Atl. 467, 16 L. R. A. 392, that membership in a beneficial association, where there is a contract to pay money by way of benefits or insurance, is a contract in the nature of a property right. As such, it is to be dealt with according to rules of law applicable to other cases of contract or of right. A member cannot be deprived of his membership arbitrarily or without proper cause. He is entitled to notice and opportunity for defense, which includes a specification of the charge against which he is to defend. Sleeper v. Franklin Lyceum 7 R. I. 523; Reynolds v. Mayor, 23 R. 1. 370, 50 Atl. 645. All of these requirements to a legal expulsion are averred in the answer, and, on demurrer, must be taken to be true.

One ground of demurrer is that the answer does not state that the charge was true. We think it states all that could properly be said in this respect. It says that evidence was produced tending to establish the guilt of the petitioner, upon which the society made a judicial determination. As testimony only on one side was before the society, it would neither be natural nor proper that the society should say that the charge was absolutely true. For the purposes of this demurrer, the society had testimony which, in its opinion, proved the charge, after notice and opportunity to the petitioner to be heard thereon.

The averment of the petitioner that he had no notice raises a question of fact, not of law. Nothing appears to show that the

notice was insufficient as to time or substance. The charge, according to the bylaws, was one for which a member could be expelled, if for such a charge an authority in the by-laws was necessary. Society v. Commonwealth, 52 Pa. 125, 91 Am. Dec.

139.

It is further urged that the charge as set forth was not sufficiently specific, because it does not state to what particular matters or what occasions they refer, so as to enable the petitioner to defend against them. Doubtless this would have weight if it appeared that the member was unable, for want of specification, to meet the charge, and he was thereby deprived of a chance to present his defense. But when he has actual notice of the particular charge he has all that he can claim, even though it may not be formally stated. In Reynolds v. Mayor, the petitioner protested against immediate action on that ground, but his protest was refused. In this case it appears that the petitioner was present at the hearing before the committee, and that the matter then heard was referred to the society. He therefore knew the particular charge to be tried. We see no ground for demurrer in the substance of the answer.

Another ground for demurrer is that, as the hearing and expulsion took place on Sunday, it was illegal and void. It was a rule of the common law that Sunday is a nonjudicial day, and many cases have held that a judgment entered on Sunday was void. The petitioner argues that the trial in this case was an exercise of judicial power, and therefore void. The cases relied on by him relate to judgments of courts, where it has been held, in some upon common-law authority and in some upon statutory provisions, that judgments so entered were void. We recognize the correctness of such decisions upon common-law authority, and also upon grounds of public policy and recognition of Christian practice. The present case, however, does not come within such grounds of prohibition. While there was a trial, the respondent was not a court of law, but a benevolent association, and its action was a part of the business of such a society. Such bodies are recognized as charitable organizations because their object is not individual profit, but a provision to relieve its members and their families in cases of sickness and death. There was no rule at common law to forbid such societies to transact their business on Sunday. Possibly they are of too recent a date to have been embraced in such a rule. As said by Savage, C. J., in Story v. Elliot, 8 Cow. 27, 18 Am. Dec. 423: "By the common law, then, it appears, all judicial proceedings are prohibited. All other acts are lawful unless prohibited by statute." That case Involved an award made on Sunday, and the court held it void, as a judicial proceeding, because arbitrators are not only jurors to de

termine facts, but judges to adjudicate as to the law; and their award, when fairly and legally made, is a judgment conclusive between the parties, from which there is no appeal. Accepting the rule thus stated, we do not think that the action here complained of was a judicial proceeding in the sense in which the term was used at common law, nor by the court in the opinion last cited. Evidently the courts of New York do not so regard it, for in People ex rel. Corrigan v. Young Men's Society, 65 Barb. 357, it was held that a notice to answer charges served on Sunday, and a hearing, resulting in expulsion from a benevolent society, on the next Sunday, were not illegal because the papers were served and were returnable on Sunday, because they were not illegal at common law nor forbidden by statute. The court added: "The relator chose to belong to a society which held all its regular meetings on that day, and if, at such a meeting, he was served with notice to attend the next meeting, it does not rest with him to make the objection." In McCabe v. Father Matthew Society, 24 Hun, 149, it was held that a resolution of suspension was not rendered invalid by the fact that it was adopted at a meeting held on Sunday, for the reason "it is pure charity to relieve sick members, and the passage of such a resolution on Sunday would be unobjectionable." Turnverein v. Carter, 71 Mich. 608, 39 N. W. 851, under Comp. Laws, c. 55, § 1, like our law in excepting works of necessity and charity, it was held that a resolution authorizing a mortgage by the society, passed on Sunday, was void because it was not a reiigious or charitable association; implying that a charitable association might have done so. No cases are cited by the petitioner, and we know of none, which hold that a society of this sort may not transact its business on Sunday. That which comes nearest to such a statement is Society v. Commonwealth, 52 Pa. 125, 91 Am. Dec.

139.

In

The court sustained the expulsion of a member of a relief association for the sick. at a meeting held on Sunday, on the ground that the question of illegality for that cause was not before the court as one of the grounds of demurrer. The court added, by way of quære: "It might be well to consider how far such trials on Sunday comport with the legislation of the state and the genius of our institutions." The statute was similar to ours in excepting works of necessity and charity. We think that the necessary work of charitable organizations is within the intent and words of our statute. The petitioner argues against such a construction, for the reason that he might not be able to compel the attendance of witnesses or the aid of counsel on Sunday. This consideration. however, is not raised by any facts set forth in the record. The attendance of witnesses before such a tribunal 54 A.-4

cannot be compelled at any time; but a lawyer appearing to defend might be regarded as doing work of his ordinary calling. If either witnesses or counsel should be unwilling to attend on Sunday, or for any cause tending to deprive one of a fair trial he should ask for a reasonable postponement on that account, and it should be refused, there would be strong reason for holding such an expulsion to be illegal. But no such facts appear in this case.

We decide that the demurrer to the answer cannot be sustained upon the grounds stated.

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1. In an action by a plumber, employed by a real estate agent for the latter's principal, it appeared that the plumber knew of the agency, and he testified that he intended to hold the principal. The plumber's book showed a charge against the agent, with subsequent alterations indicating an intention to charge the principal. Held, that the evidence was not sufficient to overthrow a verdict for the plumber, as, disregarding the alterations in the book account, it would still not be conclusive of an intention to charge the agent alone.

2. A principal received of its agent a voucher for work done by a plumber employed by the agent, receipted by the agent in the plumber's name. The sum so evidenced was credited to the agent, and the balance due from him proportionately reduced. No actual settlement by payment of this balance was had. Held, that the plumber was not estopped, by delay in presenting his claim to the principal, to hold the latter.

3. Books of a real estate agent, containing debits and credits relating to business transacted for a particular principal, and also other customers, are not admissible as books of the principal; it having had no power or right to make or direct entries therein.

4. Books of a real estate agent, showing payment of a plumber employed by him, are not admissible against the plumber in an action by him against the agent's principal; the entry being neither an admission by the agent against his interest. nor the record of a fact forming part of the res gestæ, made by a person not interested in the principal fact in issue,-payment of the plumber being the principal issue.

5. Where a witness of defendant was out of the state, and his evidence was before the court only by the admission of plaintiff that he I would have sworn to a payment of the claim sued on, the books of such witness cannot be introduced as an admission that the witness, with his memory refreshed by their inspection, would have sworn to the payment, where no such demand was made by defendant on plaintiff.

Assumpsit by Thomas J. McKeen against the Providence County Savings Bank. On defendant's petition for new trial. Denied.

Argued before STINESS, C. J., and ROGERS and DOUGLAS, JJ.

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