beneficiary | Me. Upon his application, the Grand Lodge of Massachusetts, which then had jurisdic

no knowledge that the designated was a person not entitled to be one.

[Ed. Note. For other cases, see Insurance, tion over the lodges in Maine, issued to him a Cent. Dig. § 1944.]

BER.

The intent of a member of a fraternal insurance order as to who should receive benefits under his certificate cannot be enforced where it is contrary to the legal effect of the contract. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1944.]

Report from Supreme Judicial Court, Somerset County, in Equity.

Bill of interpleader by Grand Lodge of Ancient Order of United Workmen of Maine against Irene R. Conner and others. On report from Supreme Judicial Court of Somerset County. Decree ordered.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and MADIGAN, JJ.

Walton & Walton, of Skowhegan, for plain

tiff.

Charles O. Small, of Madison, for de fendants James H. Welch, Hattie E. Williams, Charles Collins, and Frank Welch. George C. Webber, of Auburn, and Ballard F. Keith, of Oldtown, for defendant Irene R. Conner. W. H. Powell, of Oldtown, for de fendants Ernest A. Welch and another.

HANSON, J. This is a bill of interpleader brought to determine to whom belongs a death benefit which was payable upon the death of Andrew J. Welch, who in his life time was a member of the plaintiff order. The defendant Irene R. Conner is the person named as beneficiary in Welch's benefit certificate. The other defendants are Welch's heirs. The fund was brought into court, and Mrs. Conner and the heirs were ordered to interplead, and have done so. The case comes before this court on report.

Grand Lodges have sep

benefit certificate, payable upon his death to his wife. Subsequently his wife died. And in 1890 he surrendered the first certificate in the manner required by the laws of the order. Upon his application, the Grand Lodge of Massachusetts issued to him a new benefit certificate payable to Nettie J. Richardson, who he declared was his daughter. In fact, Mrs. Richardson was not his daughter, nor in any way related to him by blood. Nor had she been legally adopted by him. She was his niece by marriage, the daughter of his deceased wife's sister. She had, however, been brought up by him as a daughter from early childhood. She had married before her aunt's death, and at the time the certificate was issued was living with her.

husband in her own home. And it seems that at that time the only persons who could be designated as beneficiaries, under the bylaws of the Grand Lodge of Massachusetts, were "wives, children, affianced wives, blood relatives, and persons dependent upon the member."

In 1901 the Grand Lodge of Maine was created by the Supreme Lodge. It had jurisdiction over the members of all lodges in Maine. It collected the benefit funds and paid the death benefits in Maine. By virtue of the Supreme Lodge law creating it, it became liable to pay the death benefits of all members of lodges in Maine who should die thereafter. The members were privileged to surrender the benefit certificates which had previously been issued to them by the Grand Lodge of Massachusetts, and receive new But ones from the Grand Lodge of Maine. whether they did so or not, the Grand Lodge of Maine, and not the Grand Lodge of Massachusetts, was thereafter responsible.

The Supreme Lodge of the Ancient Order In 1904 Mr. Welch surrendered his Masof United Workmen is a fraternal beneficiary order of national jurisdiction. Under it, and sachusetts certificate and received a new one subject to its control and its laws, are Grand from the Grand Lodge of Maine payable to Lodges, which have a limited jurisdiction Nettie J. Richardson, described therein as In 1906 be surrendered that over the membership in limited areas, usual-"daughter." ly, single states. certificate, as by the laws of the order he had arate jurisdiction to collect moneys for death a right to do, and received a new certificate benefits, and to disburse them to beneficiaries. payable to Irene Richardson, now Mrs. ConThe classes of beneficiaries for whom benefits ner, who was therein described as "grandmay be provided by Grand Lodges are limit- daughter." In 1908, wishing to reduce the ed, first, by the statutes of the state where amount of the benefit, he surrendered that the Grand Lodge exists, and, secondly, by certificate and received a new certificate for the law of the Supreme Lodge, which de- a reduced amount payable like the former clares that beneficiaries must "be of the to Irene Richardson described as "grandclass described in its General Law." The daughter." And it is with this last certificate General Law referred to provides as follows: "Each member shall designate the person or persons to whom the beneficiary fund due at his death shall be paid, who shall, in every instance, be one or more members of his family, or some one related to him by blood, or who shall be dependent upon him."

In 1882 Welch became a member of the order in a subordinate lodge in Oldtown,

that we are chiefly concerned in this case. He died in August, 1914, never having made any other change. Neither the Grand Lodge of Massachusetts, nor the Grand Lodge of Maine, had knowledge that Mrs. Richardson was not his daughter, nor that Mrs. Conner was not his granddaughter, until after his death. Nor did Mrs. Conner know that her

mother had never been legally adopted until and other persons not privy to the contract this controversy arose.

The vital question then is whether Mrs. Conner was a legally designated beneficiary. She is not within any of the classes named in the by-law, to which the designation of beneficiaries is "confined." But Mrs. Conner contends that she is within one of the classes named in the statute to which payments "shall be" made, namely, "families." She says she was of Mr. Welch's family, and, therefore, that he could legally designate her as his beneficiary. The evidence, we think, tends to show that at the time this certificate was issued and afterwards Mrs. Conner was not a member of Mr. Welch's family, but [1] We will first notice this last contention. rather that for a short time he was a memCounsel for Mrs. Conner has cited many cas- ber of her family. But waiving this, we

OF EVIDENCE-OTHER FIRES.

ADMISSION

[3] Although the statute says that benefits [2. RAILROADS 481 (2) - FIRES "shall be" paid to certain classes of beneficiaries, it does not mean that fraternal benefit societies may not limit their benefactions to a part only of the classes named in the statute, or to a part of one class. The statute limits the classes to whom benefits may be paid. The societies cannot go outside those classes, but they are not obliged to make beneficiaries of all persons within those classes. They may limit them. This plaintiff, by its by-law, undertook expressly to limit the term "families" to wives and children, and "adopted children" to children "by legal adoption." It omitted "affianced husbands," We think it had a right to make these limitations, and that its law to this effect controlled the rights of the member, Welch, and of the beneficiary whom he designated. The case of Massachusetts Catholic Order of Foresters v. Callahan, 146 Mass. 391,1 is much relied upon by Mrs. Conner on this question. But that case does not help. The statute empowered the order to make "relatives" of the member beneficiaries. But the society had not expressly limited the classes to whom benefits might be paid. A mother was held to be a proper beneficiary, although the society's constitution stated its "object" to be to make "suitable provision for the widow and the orphan."

damages from fire communicated by locomotive, In an action under Rev. St. c. 52, 73, for evidence that other fires had been set by defendant's engines in same locality and about the same time was admissible, and it was not neceswhich set the other fires had exactly the same sary for plaintiff to first prove that the engines equipment and used exactly the same fuel as the one in question; such engines being similar and burning soft coal, and such evidence tending to show the inflammable condition of the country at the time and that sparks from such engines could cause such fires.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1719.]

Exceptions from Supreme Judicial Court, Kennebec County, at Law.

Actions by Ethel R. Libbey and Lewis F. Libbey against the Maine Central Railroad Company. Judgment for plaintiffs, and defendant brings the cases before the law court on a general motion and exception to admission of evidence. Motion and exception overruled.

Argued before SAVAGE, C. J., and CORNISH, KING, HANSON, PHILBROOK, and MADIGAN, JJ.

son, all of Augusta, for plaintiffs. Johnson Frank G. Farrington and Andrews & Nel& Perkins, of Waterville, for defendant.

personal property of Mrs. Libbey and personal property of her husband, were tried together, and the jury returned verdicts for the plaintiffs. On a general motion and exception to the admission of evidence, they are before the law court.

[4] There are cases which hold in effect case, based on section 73, c. 52, of the ReMADIGAN, J. These two actions on the that a fraternal society may waive its by-vised Statutes, for burning buildings and laws, and by continuing to receive assessments, and in other ways recognizing the designation as a proper one, may validate a designation of a beneficiary who is not entitled to be one. However, this may be, the principle does not apply in this case. The plaintiff order had no knowledge of the untruth of the designation until after Mr. Welch's death. It did not waive what it did not know. Marcoux v. Society, etc., St. John Baptist, 91 Me. 250, 39 Atl. 1027.

town of Clinton, on the westerly side of the [1] The plaintiffs lived on a farm in the highway heading from Clinton to Burnham, and easterly of and adjacent to the tracks of defendant's railroad. The buildings consist

[6] We hold that Mrs. Conner was not a le-ed of a dwelling house, ell, shed, barn, and gally designated beneficiary; that is, she was not a beneficiary designated in accordance with the laws of the plaintiff society, and that the fund should be paid to the defendant heirs. Doubtless this result will not carry out the wishes of Mr. Welch. But we cannot concern ourselves with his wishes. We must give the legal effect to the contract. A decree in accordance with the opinion will be entered by a single Justice.

So ordered.

(116 Me. 231)

LIBBEY v. MAINE CENT. R. CO. (two cases). (Supreme Judicial Court of Maine. June 14, 1917.)

1. RAILROADS

482(2)-FIRES-SUFFICIENCY

OF EVIDENCE. In action under Rev. St. c. 52, 8 73, for damages from fire communicated by locomotive, evidence held sufficient to sustain verdict for plaintiff.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1731, 1732.]

hoghouse. The house faced the highway on the east and was farthest removed from the track. The ell was west of the house and nearer the track. Extending southerly from the ell to the barn was the shed. Nearest to the track was the hoghouse, formerly an icehouse, which was on the westerly end of the barn. Across the end next to the track it was banked with sawdust, and back of it laid some old wire, through which the grass had grown up, withered, and died. Beyond this wire and dry grass, toward the track, perhaps a rod or two west of the hoghouse, an old comforter, surrounded by a lot of burlap, laid on the grass.

On the night of the fire, May 28, 1915, Mr. Libbey closed the barn and other buildings between 7:30 and 8 o'clock. Back of the buildings there was a grade in the defendant's track of 45 feet to the mile. Four freight trains passed over the grade during the evening, one at about 9:55, one west

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

bound at about 10:34, one east bound at that a powerful locomotive could during a about 10:55, and one east bound at about high wind force through the screen in the 1:20. The driver of the 10:55 train noticed spark arrester? The mesh in this screen is no fire, but the driver of the next train, when three-sixteenths of an inch long by threeabout one mile from the buildings, saw fourths of an inch wide, seemingly large flames half on the side and half on the roof enough to emit dangerous sparks. of the hoghouse. His warning was the first notice of the fire the family or the neighbors had.

Several witnesses testified to other fires set about this time in this vicinity by engines of the defendant. Mr. Libbey saw no It was fully established that freights have fire when making his rounds in the evening, great difficulty in getting over this grade and he was not smoking and had no matchwithout extra engines, and that it is a frees. The fire apparently caught from the outquent occurrence for them to throw off live | side, and from the appearance when discoversparks at this point. Mrs. Hunt, whose hus-ed started near the ground. It was not noband at the time was foreman of that sec- ticeable from the track at 11, but was on the tion, testifies that about 11 o'clock she saw passing of the next train. In view of the a freight train almost stuck on this grade testimony of Mrs. Hunt, and the other wit"just moving," it was making a noise and nesses, who testify as to the conditions existhaving a hard time, working very hard, and ing, and the location of the fire when dissparks came from the smoke stack, quite a covered, and the further fact that the burfew good-sized sparks. The wind was blow-lap and old comforter were destroyed, we do ing a gale from the hardest part of the grade, exactly quartering, toward the Libbey buildings; "that it was a common occurrence for freight trains to get stuck out there, and sometimes they had to back up to Burnham." There is no question from either side as to the direction of the wind, or that it was blowing hard, and the crew do not deny that the engine was throwing off live sparks.

Circumstances indicate that this engine set the fire. No other explanation seems plausible. The defendant insists that a fire set at 11 would have made greater headway than this did. The progress of fire depends on conditions. Lodging in the dry grass, catching in the old comforter, and smouldering in the sawdust banking, it might burn some time before getting vent. Sawdust, owing to its compactness, burns slowly but persistently. Some witnesses claim conditions were too damp, but two women walked through the grass with low shoes on, without wetting their feet, and grass fires started from the burning buildings. The distance 650 feet from the track to the buildings is claimed to be too great for a live spark to travel. But a disinterested witness testi

fies that the day before the fire a live spark from an engine lit on him at a measured distance of 55 rods from the track. The experience of the jury enabled them to weigh all of this testimony.

The engines that passed the buildings previous to the fire were equipped with the Mudge Slater spark arrester, which the defendants contend makes it impossible for the engines to throw off dangerous sparks. Evidence of a test was given to prove this theory, but during that test there was little, if any, wind. Were all of the other conditions the same as on the night of the fire? A coal-burning engine must have draft to steam, and the harder it works the more draft it must have, for lessening the draft lessens the power. The driver and fireman of this engine do not deny it was throwing off sparks on the grade. Why could it not throw off any spark

not feel that the jury were so far wrong in their conclusion that their verdict should be set aside.

[2] Subject to the defendant's objection, the court admitted evidence that several other fires had been set by the defendant's engines in this same locality and about this same time. The contention being that all of the engines that passed this locality on the night of the fire having been identified, before the evidence objected to would be admissible, the plaintiffs must first prove that the engines which set the other fires must be shown to have the same equipment and the same fuel as the one which burned the buildings. We cannot agree with this view. These actions are not based on negligence, but are based on the statute making the defendant liable regardless of negligence, and it is not contended that any of the engines were propelled by electricity, or were oil burning, or that the did not burn soft coal. This evidence tended to show the dry and inflammable condition of the country at the time and that sparks from coal-burning engines can

set fires.

While the modified rule is not passed upon in the following cases, nevertheless the reasoning on the general principles of the admissibility of evidence of the character objected to seems applicable where the modified rule is invoked; but, as heretofore observed, this rule has never been adopted in this state. Jones v. Maine Cent. R. R., 106 Me. 442, 76 Atl. 710, says the following:

"In an action to recover damages caused by a fire alleged to have been set by the defendant's locomotive, held, that the question involved was circumstances, and that the evidence should be of of reasonable inference from all the facts and such character that a reasoning mind could see the connection between cause and effect. Where the defendant having introduced expert evidence that its locomotives, equipped as they were with a wire netting over the smokestack, could not in the opinion of the witnesses throw a spark beyond 30 feet from the rail, held that buttal to introduce testimony of specific in it was not error to permit the plaintiff in restances where fires had been set by these locomo

tives at distances varying from 95 to 152 feet. The objections raised by the defendant that the evidence was too remote in time and place, and that the conditions were not shown to be simi=lar to those surrounding the fire for which this action is brought, go to weight of the testimony, and not to its admissibility."

mont, and United States decisions, are the Massachusetts decisions. McGinn v. Platt,

177 Mass. 125, 58 N. E. 175.

As the defendant does not claim that any of their engines are better equipped for arresting sparks than those that passed the

Dunning v. Maine Cent. R. R., 91 Me. 87, plaintiff's buildings on the night of the fire, 39 Atl. 352, 64 Am. St. Rep. 208:

and as this one evidently could, and according to the evidence did, emit sparks, we can see no reason why the evidence should have been excluded, regardless of the modified rule contended for.

As no complaint is made about the amount of the damages, we must hold that the defendant's motion and exception must be overruled, and the verdicts stand.

"In the trial of an action for damages by fire, alleged to have been communicated by a locomotive engine, when the question at issue is whether as a matter of fact the fire was caused by any locomotive, evidence that other fires were caused by the defendant's locomotives, at about the same time and in the same vicinity, is relevant and admissible, for the purpose of showing the capacity of locomotive engines to set fires by the emission of sparks or the escape of coals. That other engines of the same company, under the same general management, passing over the same track at the same grade, at about the same time, and surrounded by the same physical conditions, have scattered sparks or dropped coals so as to cause fires, appeals legitimately to the mind as (Court of Errors and Appeals of New Jersey. showing that it was possible for the engine in

(89 N. J. Law, 718) RUANE v. ERIE R. CO.

March 14, 1916.)

I question to do likewise. Such testimony is illustrative of the character of the locomotive, as 1. MASTER AND SERVANT 286(26)-INJURY such, with respect to the emission of sparks or the dropping of coals."

To the same effect is Grand Trunk Ry. V. Richardson, 91 U. S. 454-470, 23 L. Ed. 356. In Texas & Pacific Ry. v. Watson, 190 U. S. 287, 23 Sup. Ct. 681, 47 L. Ed. 1057, the fire was alleged to have been caused by the negligence of the railway company in the use of a defectively constructed locomotive and in the careless operation thereof. Evidence was admitted that at or about the same time of a fire, and at the time of the passing of the locomotive, which it was charged occassioned the fire, the witnesses observed other fires at various points not far removed from the fire complained of. Held, that the evidence was competent as having a tendency to establish that the destruction of the plaintiff's property was caused by the locomotive in question, and as tending to show negligence in its construction or operation.

Smith v. Central Vermont Ry. Co., 80 Vt. 216, 67 Atl. 535. Although there is not a unanimity of decisions on the question, we think it may be said from the weight of authority that this kind of evidence is admissible as tending to show such a tendency, or capacity in the class of engines passing over the line to emit sparks as to be evidence tending to prove the possibility and a consequent probability that the fire in question was caused by one of the defendant's engines. And we see no good reason for any difference in the tendency of such evidence, whether it relates to other engines within a reasonable length of time, before or within a reasonable time after, the occurrence of which complaint is made. In this case, the modified rule was urged before the court; but it was held that, in any event, it did not apply, as the plaintiff could not definitely identify the engine that set the fire.

TO EMPLOYE-NEGLIGENCE
JURY.

- QUESTION FOR

in use two days after being sent to the repair Evidence that, when a locomotive was put shop, on report of the engineer that there was an obstruction between tank and engine, and that the tank needed to be cleaned out and a new fireman, made it a jury question whether the strainer put in, its boiler exploded, killing the employer exercised reasonable care in making the repairs of the defects reported.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1031.] 2. MASTER AND SERVANT 201(1)—INJURY— CONCURRING NEGLIGENCE OF MASTER AND FELLOW SErvant.

The master's negligence co-operating with that of a fellow servant to produce injury to a servant, it is liable.

Servant, Cent. Dig. § 515.]
[Ed. Note.-For other cases, see Master and

Appeal from Supreme Court.

Patrick Ruane, deceased, against the Erie Action by Martin Ruane, administrator of Railroad Company. Judgment for plaintiff was affirmed by the Supreme Court, and defendant appeals. Affirmed.

In the Supreme Court the following per curiam opinion was filed:

"A former judgment obtained by the respondent against the appellant in this case was reversed by this court for an error in the judge's charge. Ruane, Administrator, v. Erie Railroad Co., 83 N. J. Law, 423, 85 Atl. 178, afAtl. 1135. firmed by the Court of Errors and Appeals 90

"A second trial between the parties resulted in a verdict for the respondent for $4,000. The trial judge, on application of appellant, allownot be set aside as contrary to the weight of the ed a rule to show cause why the verdict should evidence and excessive, and reserved to the appellant the benefit of an exception taken by it at the trial to the refusal of the court to direct a verdict for the respondent. The rule was subsequently discharged upon the respondent agreeing to accept $2,500, and judgment was ordered and entered for that amount against appellant. On this appeal the appellant challenges respondent's right to any recovery against it on the evidence To the same general effect as Maine, Ver-in the cause. The grounds urged by counsel