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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. Cap. defendants were husband and wife, and that ron, individually, and as executrix of Herbert they were together at the time of the comS. Capron, deceased. Heard on demurrer to mission of the wrong complained of. These plea. Demurrer sustained.

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.

in favor of the defendant Luella, and hence Terrence M. O'Reilly, for plaintiff.

are not conclusive as to the plaintiff's right of Wil

action against her. That is to say, under liam H. Sweetland, for defendant.

the facts shown in the pleadings, a prima

facie presumption arises that the defendant TILLINGHAST, J. The plea which the wife acted under the control and coercion of defendant, Luella W. Capron, interposes as a her husband in committing or participating bar to this action, in so far as it seeks to in the commission of the tort relied on by the hold her individually responsible for the neg- plaintiff. Said presumption, however, being ligence complained of, is that at the time of, only a prima facie one, may be rebutted in the alleged wrong and injury participated in evidence by showing that the wife was the by the testator, Herbert S. Capron, she was instigator of the wrong, or the more active his lawful wife. To this plea the plaintiff party in the commission thereof, or that the demurs on the grounds (1) that the said de husband, although present, was incapable of fendant, Luella, does not, in her plea, allege | coercing her. Marshall v. Oakes, 51 Me. 308; that at the time of committing the said wrong State v. Shee, 13 R. I. 535; State v. Boyle, and injury she was under the coercion of Id. 537; Schouler's Dom. Rel. (4th Ed.) § 75; her said husband; (2) that said plea is not Am. & Eng. Ency. of Law (2d Ed.) 899, and conclusive, but merely raises a presumption cases in note 7. The plea, therefore, is inof law, which is only a prima facie presump sufficient as a bar to the action, in that it tion; and (3) that the matter set up in said fails to allege that the wife was acting unplea can be shown under the plea of the gen der the control, direction, or coercion of her eral issue. The declaration alleges that, in husband. Ency. Pl. & Pr., vol. 10, p. 273; the lifetime of said Herbert S. Capron, he | Wagener V. Bill, 19 Barb. 321; Burnett v. and said Luella negligently caused a buggy Nicholson, 86 N. C. 99; Clark v. Bayer, 32 in which they were driving to be driven Ohio St., at page 311, 30 Am. Rep. 593. against a bicycle upon which the plaintiff was The decisions of this court in Simmons v. riding, whereby she was injured.

Brown and Wife, 5 R: I. 299, 73 Am. Dec. The main question raised by the demurrer 66, and in Baker v. Braslin, 16 R. I. 635, is whether a married woman can, in any 18 Atl. 1039, 6 L. R. A. 718, recognize and event, be held liable for a tort committed by adopt the same general rule as that above her in the presence of her husband. We stated as to the joint liability of husband and think this question must be answered in the wife in such cases. In the latter case, Duraffirmative. At the common law the husband fee, C. J., in delivering the opinion of the and wife are jointly liable for such of the court, said: “It is true that, where husband wife's torts committed during coverture as and wife join in committing a tort, the prefall within the following classes, namely: (1) sumption is that she acts under marital coerWhere the husband is absent and had no cion; but this presumption is prima facie knowledge of the intended act, as in Head v. only, and may be rebutted by proof that she Briscoe, 5 Carr & Paine, 484; (2) where the acted of her own free will." husband is absent, but the tort is committed But the defendants' counsel contends that under bis direction and at his instigation, as under Gen. Laws R. I. c. 194, § 14, the husin Handy v. Foley, 121 Mass. 259; and (3) band is solely liable for a tort in the comwhere the husband was present, but the wife mission of which both he and his wife paracted of her own volition, as in Cassin v. ticipated. Said section provides that "the Delany, 38 N. Y. 178. See Kosminsky v. husband shall not be liable by reason of the Goldberg, 44 Ark. 401. The statement in 2 marital relation for any contract made or for Kent, Com. 149, cited by counsel for defend any tort committed by his wife prior to their ants in support of his plea, viz., that if the marriage; nor shall he be liable for any conwife commits a tort "in his company or by tract made after marriage by his wife; nor his order,” he alone is liable, is too broad, for torts committed by his wife after marand is not sustained by the current of au riage, unless he participates therein or coerces thorities. Handy v. Foley, supra; Kosminsky her thereto." The evident purpose of this v. Goldberg, supra. Where the tort is com statute is to restrict and lessen the cominonmitted in the presence of the husband, and law liability of a husband both for his wife's by his command or coercion, he alone is lia contracts and torts. It relieves him of all ble. To exempt her from liability, therefore, liability for her contracts, whether antenuprequires the concurrence of his presence and tial or postnuptial. It also relieves him from command, or coercion. Cassin v. Delany, su all liability for her antenuptial torts, and pra.

leaves him liable only for those committed The plea which is demurred to in the case by her after the marriage, in which he parat bar, taken in connection with the allega- ticipates, or which he coerces her to com

mit. The statute, as we read it, simply TILLINGHAST, J. This is trover for the leaves the husband subject to the same lia conversion of certain merchandise which the bility as to such torts as he was under at plaintiffs claim was delivered to the defendthe common law. That is to say, where he ant on consignment, and comes here upon exsimply participates in the tort, he is jointly ceptions to the rulings of the district court liable with her; and, where he coerces her of the Sixth judicial district. The plaintiffs, in the commission thereof, he is solely lia- | who are wholesale dealers in groceries and ble. To hold that he alone is liable simply provisions, claim that they consigned three because he is present and participates in the lots of merchandise to the defendant, who wrongful act would be to extend, instead of was a retail grocer; that the first consignlessen, his common-law liability in a case like ment was paid for by the defendant; and the one before us; and we do not think the that the second and third consignments, valstatute was intended to have this effect. ued at $36.50, were delivered April 30 and Moreover, if the intention of the general as May 15, 1902, and have not been paid for. sembly had been to make the husband solely On May 22, 1902, the defendant made a genliable in cases where he participates with his eral assignment for the benefit of his credwife in the commission of the wrong, we itors, whereupon the plaintiffs made demand think they would have said so in plain terms. for the goods found in defendant's store which In this connection it is pertinent to remark they claimed belonged to them, of the value that the evident intent of modern legislation of $14.48, and for the balance of the goods in this state-and such seems to be the tend alleged to have been consigned, which the deency of legislation in other states-is to place fendant bad sold. The district court found, a married woman upon practically the same upon the evidence submitted, “that the plainbasis or plane with regard to legal rights and tiffs had proved that the goods were conliabilities as if she were sole and unmarried. signed, that a demand therefor had been And hence, in the construction of statutes re made, that the plaintiffs were entitled to de. lating to such rights and liabilities, we think cision for the value of the goods unsold at that, in so far as may be, consistently with the time of the demand, and that the plainthe language used therein, they should be so tiffs were not entitled to recover in this acconstrued as to carry out the general purpose tion the value of the goods sold.” To this aforesaid.

last ruling the plaintiffs took an exception, As the demurrer to the plea in question claiming that the conversion took place upon must be sustained on the first two grounds the assumption by the defendant of ownerassigned by plaintiff's counsel, there is no ship under his claim (which he made at the occasion for us to consider the third ground, trial) of buying the goods on credit and sellnamely, that the matter set up in the plea ing them for his own account. In other can be shown under the plea of the general words, the exception is based upon the plainissue. But see, as bearing upon this question, tiffs' contention that a decision in their faGoodell v. Bates, 14 R. I. 65.

vor should have been rendered for the entire The plaintiff's demurrer to the special plea | value of said second and third consignments in bar is sustained, and the case remanded ($36.50), on the ground that under the defendfor further proceedings.

ant's own testimony the conversion took place upon his assumption of ownership of said

goods in himself, and the sale of the goods (24 R. I. 539)

under such assumption; that, if any act was STONEMAN et al. v. LYONS.

needed other than the mental assumption of (Supreme Court of Rhode Island. Dec. 17,

ownership, the subsequent sale supplied such 1902.)

necessary act. TROVER-CONVERSION OF GOODS-CONSIGN

The main question of fact presented for deMENT FOR SALE.

cision in the district court was whether the 1. Though, iu trover, the court finds as a goods alleged to have been converted by the fact that goods shipped by plaintiff to defend

defendant were consigned to him by the ant were consigned merely to be sold to third persons, and not as a delivery consummating a

plaintiffs for the purposes of sale, or were sale to defendant himself, the latter is not lia sold to him outright. The testimony bearing ble as for a conversion of a portion sold to third upon this question was conflicting; that ofpersons merely because he has defended the ac

fered by the plaintiffs tending to prove that tion by contending that the goods were not consigned, but that there was an actual sale to the goods were consigned to the defendant, him.

while that offered by the latter tended to Exceptions from Sixth district court.

prove a sale in the ordinary course of busiTrover by Stoneman & Grossman against

The court found in favor of the plainJohn H. Lyong. Decision for plaintiff's grant

tiffs upon this issue, and, a demand for the ing insufficient relief, and they except. Ex

goods remaining in the defendant's hands at

the time of making his assignment, and a receptions overruled.

fusal to deliver the same having been proven, Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

gave decision for the plaintiffs for the value

of the goods thus held by the defendant. T. M. O'Reilly, for plaintiffs. John I. Dev This finding, being purely one of fact, cannot lin, for defendant.

be reviewed by this court on exceptions. And

ness.

William B. Greenough and James C. Col. lins, 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, bay, or any other substances whatever,” are broad enough to cover all kinds of property so burned.

The demurrer to the declaration is overruled.

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. 15, 33 L. R. A. 561, 61 Am. St. Rep. 791. See, also, Hassett & Hodge v. Cooper, 20 R. 1. 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. 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 expeHing of a meniber 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.

(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.

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. $$ 14, 15.

mit. The statute, as we read it, simply TILLINGHAST, J. This is trover for the leaves the husband subject to the same lia conversion of certain merchandise which the bility as to such torts as he was under at plaintiffs claim was delivered to the defendthe common law. That is to say, where he ant on consignment, and comes here upon exsimply participates in the tort, he is jointly ceptions to the rulings of the district court liable with her; and, where he coerces her of the Sixth judicial district. The plaintiffs, in the commission thereof, he is solely lia who are wholesale dealers in groceries and ble. To hold that he alone is liable simply provisions, claim that they consigned three because he is present and participates in the lots of merchandise to the defendant, who wrongful act would be to extend, instead of was a retail grocer; that the first consignlessen, his common-law liability in a case like ment was paid for by the defendant; and the one before us; and we do not think the that the second and third consignments, valstatute was intended to have this effect. ued at $36.50, were delivered April 30 and Moreover, if the intention of the general as May 15, 1902, and have not been paid for. sembly had been to make the husband solely On May 22, 1902, the defendant made a genliable in cases where he participates with his eral assignment for the benefit of his credwife in the commission of the wrong, we itors, whereupon the plaintiffs made demand think they would have said so in plain terms. for the goods found in defendant's store which In this connection it is pertinent to remark they claimed belonged to them, of the value that the evident intent of modern legislation of $14.48, and for the balance of the goods in this state--and such seems to be the tend alleged to have been consigned, which the deency of legislation in other states—is to place fendant bad sold. The district court found, a married woman upon practically the same upon the evidence submitted, "that the plainbasis or plane with regard to legal rights and tiffs had proved that the goods were conliabilities as if she were sole and unmarried, signed, that a demand therefor had been And hence, in the construction of statutes re made, that the plaintiffs were entitled to delating to such rights and liabilities, we think cision for the value of the goods unsold at that, in so far as may be, consistently with the time of the demand, and that the plainthe language used therein, they should be so tiffs were not entitled to recover in this acconstrued as to carry out the general purpose tion the value of the goods sold.” To this aforesaid.

last ruling the plaintiffs took an exception, As the demurrer to the plea in question claiming that the conversion took place upon must be sustained on the first two grounds the assumption by the defendant of owner. assigned by plaintiff's counsel, there is no ship under his claim (which he made at the occasion for us to consider the third ground, trial) of buying the goods on credit and sellnamely, that the matter set up in the plea ing them for his own account. In other can be shown under the plea of the general | words, the exception is based upon the plainissue. But see, as bearing upon this question, tiffs' contention that a decision in their faGoodell v. Bates, 14 R. I. 65.

vor should have been rendered for the entire The plaintiff's demurrer to the special plea | value of said second and third consignments in bar is sustained, and the case remanded ($36.50), on the ground that under the defendfor further proceedings.

ant's own testimony the conversion took place upon his assumption of ownership of said

goods in himself, and the sale of the goods (24 R. I. 539)

under such assumption; that, if any act was STONEMAN et al. y. LYONS.

needed other than the mental assumption of (Supreme Court of Rhode Island. Dec. 17,

ownership, the subsequent sale supplied such 1902.)

necessary act. TROVER-CONVERSION OF GOODS-CONSIGN

The main question of fact presented for deMENT FOR SALE.

cision in the district court was whether the 1. Though, in trover, the court finds as a goods alleged to have been converted by the fact that goods shipped by plaintiff to defend

defendant were consigned to him by the ant were consigned merely to be sold to third persons, and not as a delivery consummating, a

plaintiffs for the purposes of sale, or were sale to defendant himself, the latter is not lia sold to him outright. The testimony bearing ble as for a conversion of a portion sold to third upon this question was conflicting; that ofpersons merely because he has defended the ac

fered by the plaintiffs tending to prove that tion by coutending that the goods were not consigned, but that there was an actual sale to

the goods were consigned to the defendant, him.

while that offered by the latter tended to Exceptions from Sixth district court.

prove a sale in the ordinary course of busi

ness. Trover by Stoneman & Grossman against

The court found in favor of the plainJohn H. Lyons. Decision for plaintiffs grant

tiffs upon this issue, and, a demand for the ing insufficient relief, and they except. Ex

goods remaining in the defendant's hands at

the time of making his assignment, and a receptions overruled.

fusal to deliver the same having been proven, Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

gave decision for the plaintiffs for the value

of the goods thus held by the defendant. T. M. O'Reilly, for plaintiffs. John I. Dev- This finding, being purely one of fact, cannot lin, for defendant.

be reviewed by this court on exceptions. And

termine facts, but judges to adjudicate as cannot be compelled at any time; but a lawto the law; and their award, when fairly yer appearing to defend might be regarded and legally made, is a judgment conclusive as doing work of bis ordinary calling. If between the parties, from which there is no either witnesses or counsel should be unwillappeal. Accepting the rule thus stated, we ing to attend on Sunday, or for any cause do not think that the action here complain- | tending to deprive one of a fair trial he ed of was a judicial proceeding in the sense should ask for a reasonable postponement in which the term was used at common law, on that account, and it should be refused, nor by the court in the opinion last cited. there would be strong reason for holding Evidently the courts of New York do not so such an expulsion to be illegal. But no regard it, for in People ex rel. Corrigan v. such facts appear in this case. Young Men's Society, 63 Barb. 357, it was We decide that the demurrer to the anheld that a notice to answer charges served swer cannot be sustained upon the grounds on Sunday, and a hearing, resulting in expul- stated. sion from a benevolent society, on the next Sunday, were not illegal because the papers

(24 R. I. 542) were served and were returnable on Sunday, because they were not illegal at common

MCKEEN V. PROVIDENCE COUNTY SAV.

BANK. law nor forbidden by statute. The court added: “The relator chose to belong to a (Supreme Court of Rhode Island. Dec. 18, society which held all its regular meetings

1902.) on that day, and if, at such a meeting, he EMPLOYMENT BY AGENT-LIABILITY OF PRIN.

CIPAL-SUFFICIENCY OF EVIDENCE-ESTOP. was served with notice to attend the next

PEL-BOOK ACCOUNT - THIRD PERSON -AD. meeting, it does not rest with him to make MISSIBILITY-ABSENT WITNESS - REFRESH.

ING MEMORY. • the objection." In McCabe v. Father Matthew Society, 24 Hun, 149, it was held that

1. In an action by a plumber, employed by

a real estate agent for the latter's princia resolution of suspension was not rendered

pal, it appeared that the plumber knew of the invalid by the fact that it was adopted at agency, and he testified that he intended to a meeting held on Sunday, for the reason hold the principal. The plumber's book show

ed a charge against the agent, with subsequent “it is pure clarity to relieve sick members,

alterations indicating an intention to charge and the passage of such a resolution on

the principal. Held, that the evidence was not Sunday would be unobjectionable." In sufficient to overthrow a verdict for the plumTurnverein v. Carter, 71 Mich, 608, 39 N.

ber, as, disregarding the alterations in the

book account, it would still not be conclusive W. 851, under Comp. Laws, c. 55, § 1, like

of an intention to charge the agent alone. our law in excepting works of necessity and 2. A principal received of its agent a vouchcharity, it was held that a resolution author er for work done by a plumber employed by izing a mortgage by the society, passed on

the agent, receipted by the agent in the plumber's name.

The sum so evidenced was credited Sunday, was void because it was not a re

to the agent, and the balance due from him iigious or charitable association; implying proportiouately reduced. No actual settlement that a charitable association might have by payment of this balance was had. lleld, done so. No cases are cited by the peti

that the plumber was not estopped, by delay

in presenting his claim to the principal, to hold tioner, and we know of none, which hold the latter. that a society of this sort may not transact 3. Books of a real estate agent, containing its business on Sunday. That which comes

debits and credits relating to business transnearest to such a statement is Society v.

acted for a particular principal, and also other

customers, are not admissible as books of the Commonwealth, 52 Pa. 125, 91 Am. Dec. principal; it having had no power or right to 139. The court sustained the expulsion of make or direct entries therein.

4. Books of a real estate agent, showing paya member of a relief association for the sick. at a meeting held on Sunday, on the ground

admissible against the plumber in an action by that the question of illegality for that cause him against the agent's principal; the entry was not before the court as one of the being neither an admission by the agent against

his interest. nor the record of a fact forming grounds of demurrer. The court added, by

part of the res gesta, made by a person not way of quære: “It might be well to con

na interested in the principal facť in issue,-paysider how far such trials on Sunday com ment of the plumber being the principal issue.

5. Where a witness of defendant was out of port with the legislation of the state and the

the state, and his evidence was before the genius of our institutions." The statute

court only by the admission of plaintiff that he was similar to ours in excepting works of would have sworn to a payment of the claim necessity and charity. We think that the sued on, the books of such witness cannot be

introduced as an admission that the witness, necessary work of charitable organizations is

with his memory refreshed by their inspection, within the intent and words of our statute.

would have sworn to the payment, where no The petitioner argues against such a con such demand was made by defendant on plainstruction, for the reason that he might not

tiff. be able to compel the attendance of wit Assumpsit by Thomas J. McKeen against nesses or the aid of counsel on Sunday. the Providence County Savings Bank. On This consideration, however, is not raised by defendant's petition for new trial. Denied.

attendance of witnesses before such a tribunal ERS and DOUGLAS, JJ.

54 A.-4

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