"(2) Where the laws of the Province, State, or Country in which a member has a fixed place of abode, or, if deceased, had a fixed place of abode at the time of his death, legally give and recognize the right of the member or other person claiming legal rights under him to maintain an action after the decision of the executive council on appeal on matters relating to the monetary benefits of the order, the right is hereby expressly reserved to the member himself, or to his beneficiary or legal personal representative, or to other persons deriving legal rights from him or them, or any of them, to bring action thereon in any civil court of competent jurisdiction; provided that all the remedies in section 197 shall first be resorted to and exhausted by appeals and otherwise as a condition precedent to the right to bring any such action or maintain the same in a court of law or equity." The points discussed are: (1) That the undisputed testimony shows that deceased had used morphine to such excess as to endanger his health and materially affect the risk on his life, and the court should have directed a verdict for the defendant for that reason. (2) That under the contract the occasion of deceased's use of morphine was immaterial, and it was error to submit the case to the jury upon the theory that, if taken to allay pain, it was not a violation of the contract. (3) The court should have directed a verdict upon the ground that by reason of his suspension the deceased was not a member of the defendant order in good standing at the time of his death. (4) That a verdict should have been directed in defendant's favor upon the ground that plaintiff did not appeal from the order of the chief ranger disallowing her claim. (5) That the court erred in denying a motion for new trial. The proof in this cause that the deceased was addicted to the use of morphine to an extent that was injurious to and endangered his health and was material to the risk is overwhelming. The learned circuit judge must have taken this view of it, for he stated that: "I feel very free to say that, if I were to dispose of this as a question of fact, I could not for a moment give this lady a judgment. From my mind the facts are almost overwhelming that he did have the habit of taking morphine, and that under the by-laws of this order and the provisions of the sections that have been read here his beneficiary could not recover; but there is some, and I am not so sure but there is enough, testimony here so that the plaintiff is entitled to argue the question, answers that the doctors gave here, that the danger from the pain was greater than that of the morphine, and he did not have the habit at all, but he was taking it for the pain. I could not believe that at all; but I think it can be argued to the jury. If he had the habit, whether it grew by administering morphine for the pain in the first place, or acquired the habit, the insurance is void, or was void when the question was raised by the order. I have more confidence in the jury than counsel for defendant has. If my record and reputation depended upon it, I think I would take this case from the jury. I think I should. * * * "But for one proposition I should have disposed of this case myself. But it is not the province of the court to dispose of disputed questions of fact. Counsel for the claimant present one proposition to you as an excuse by Dr. Conley in the use of morphine, and I can state it no better than reiterate Senator Brown's version made in your hearing a moment ago. He used this expression: 'Not a drop, mind you, not a grain a day, of morphine was used by Dr. Conley, except to allay pain.' And if the jury find this to be so, then the plaintiff is entitled to a verdict. * * * "The statement of the claimant is, and the theory presented for her by her counsel is, this: That Dr. Conley had his back injured several years before he died, I think by the lifting of a tub and slipping at the time, and that at some subsequent period, I think two or three years, perhaps I am wrong about the time, he sprained his back again, and that those sprains gave rise to severe-counsel say, excruciating-pain, and that this was continued, and that Dr. Conley, being a physician, took this morphine entirely to allay pain, and that he never did indulge in it as a habit at all; that he took no more morphine than was actually necessary to allay this excruciating pain, and he never continued it any longer than was necessary to allay the pain. "Now, if it is established by a fair preponderance of the evidence that those are the facts, then you may find a verdict in favor of the plaintiff. * * * I have given the law to be that unless Dr. Conley commenced taking this morphine for the purpose of allaying pain, that unless he had continued pain in the back which made it advisable to administer it, and that he took no more of it than was necessary to allay continued pain, so that you can fairly say that the injury from the pain would have been as great without the morphine as in the using of it to allay the pain, your verdict must be for the defendant. But if you can fairly say that this is true from the record, then your verdict should be for the plaintiff in the sum of one thousand seventy-nine and dollars." Again, if there is any testimony that tends to show that the morphine taken during this long period was in every instance taken to allay excruciating and continuous pain, resulting from an injury to deceased's back, and not only that, but that the morphine prolonged rather than shortened his life, and therefore was not injurious to the risk, it must be found in the testimony of the plaintiff, or the brother of deceased, and that of experts who testified that cases might arise where such would be true. No one testified, however, that in his opinion this was true in this case, either from knowledge of conditions, or in answer to hypothetical questions fairly covering the conclusively shown conditions, and the proof most conclusively shows the contrary. The wife's testimony shows that her husband went twice to be cured of the drug habit, after the alleged injury to his back, which she said had "so grown on him that in her opinion he could not control himself in its use.' While she said that he was a very sick man with his back, she also said that, when he said he was going to Eloise to get well, she supposed he meant "well of the morphine habit," and "the only way he could get well of that was to go somewhere for treatment." Moreover, on his return he was better as to the habit, and his general health was very much improved," and for a time, perhaps a year, he refrained from taking morphine; but in 1906, he had occasion to go again, at the suggestion of his brothers. She said: "He went to the Retreat because his brothers thought he would have good care there. He had become addicted to the use of morphine again, and went there for treatment, because he wanted to be cured of it. I can't tell exactly how long he had been taking morphine after he came from Eloise before he went to Dearborn, and don't know how long he was in that Retreat at Dearborn. He went back to Eloise from the Retreat at Dearborn, and I suppose that was still a hospital for the treatment of persons addicted to the morphine habit, the same as it was before." The testimony of John Conley, deceased's brother, does not show that the deceased took morphine for pain, or that he did not go to Detroit and Eloise to get cured of the morphine habit. In fact, there is no testimony from which it can be legitimately inferred that during this period, from 1900 to 1906, deceased was in a condition where morphine was necessary to, or would, prolong his life. He was not in a critical condition, requiring "temporary relief" from morphine, certainly not where its habitual and regular use was required to prolong his life. It was, therefore, error to leave this question to the jury. Counsel for defendant also urged that the deceased was not a member in good standing at the time of his decease, having been suspended and his appeal not having been prosecuted by the plaintiff or deceased's representative; and, again, that plaintiff's failure to appeal from the rejection of her claim precluded her from prosecuting it in a court of law, she not having exhausted her remedy in the tribunals of the order as required by the by-laws (see by-law 201, herein before quoted); and, further, that under the by-laws the decision of the order was final in this State. These propositions are supported by many cases in this State. Van Poucke v. Netherland St. Vincent De Paul Society, 63 Mich. 378 (29 N. W. 863); Canfield v. Knights of Maccabees, 87 Mich. 626 (49 N. W. 875, 13 L. R. A. 625, 24 Am. St. Rep. 186); Hembeau v. Knights of Maccabees, 101 Mich. 161 (59 N. W. 417, 49 L. R. A. 592, 45 Am. St. Rep. 400); Fillmore v. Knights of Maccabees, 103 Mich. 437, 109 Mich. 13 (61 N. W. 785, 66 N. W. 675); Rose v. Supreme Court, Order of Patricians, 126 Mich. 577 (85 N. W. 1073); Hoag v. International Congress, 134 Mich. 88 (95 N. W. 996); Derry v. Great Hive, L. O. T. M. M., 135 Mich. 494 (98 N. W. 23); Harris v. Typographical Union, 144 Mich. 422 (108 N. W. 362). It is obvious, also, that the court erred in denying the motion for a new trial; the verdict on the one point submitted being against the testimony in the case. Other points discussed by appellee's counsel need not be further referred to, as they cannot affect the result. The judgment is reversed, and a new trial ordered. GRANT, MONTGOMERY, OSTRANDER, and MOORE, JJ., concurred. UNION TRUST CO. v. COMMON COUNCIL OF CITY OF MUNICIPAL CORPORATIONS-APPROPRIATIONS-CONSTRUCTION. An appropriation for a new pumping station and machinery, in the absence of evidence that a site was not intended, must be construed to include all things necessary for the station, including a site. Appeal from Wayne; Mandell, J. Submitted June 10, 1909. (Docket No. 51.) Decided September 21, 1909. Bill by the Union Trust Company, administrator of the estate of Joseph H. Berry, deceased, and others, against |