« AnteriorContinuar »
with her and associate with her jus: as well, and one for "loss of consortium of Louise now as before, can you not?
Blair, 'as wife, heretofore incurred and to A. Sometimes, not all the time. The be hereafter incurred $2,000.” woman is in pain all the time, and when a These, with a claim of $2,500 for loss of person is in pain they don't feel much like her earning capacity and services as wife, talking and laughing and joking, nor any make up the $5,000 demand, to recover thing of that kind. They feel more like which the suit is brought. going and hiding themselves sometimes. The testimony of the plaintiff tended to
Q. Then does it simmer down to this, prove that as she stepped into the elevator that she is not at times in as cheerful a she fell, striking with the lower part of her mood or condition now as she used to be abdomen a stool which was in the elevator, A. No, sir.
causing a displacement of the uterus and Q. Is that what you complain of ? à condition which developed appendicitis. A. Yes, sir.
A surgical operation was resorted to some Q. Is there anything else in that connec. two and one-half months after the injury tion that you complain of ?
was received, the cost of which is an item A. No, not in particular.
of plaintiff's demand. Whether this operThe jury was instructed: “By consort
ation was made necessary by the injuries ium as used by me is meant the right of received by plaintiff's wife in defendant's plaintiff as husband to the fellowship of store, or whether her condition, relieved or his wife, to her company, co-operation, and attempted to be relieved by the surgical aid in every marriage relationship that operation, was of long standing and due ordinarily arises and exists as between hus. to other causes, was a subject which reband and wife, including the care of his ceived considerable attention at the trial. home, attention to household affairs, and Upon this subject the defendant preferred such other reasonable discharge of ordi- the following request, which was refused : nary domestic duties as she was accustomed
“There is no evidence tending to show there to render him as his wife, and as is usual as
was anything wrong with any of Mrs. between husband and wife situate as they
Blair's organs excepting the appendix and were.”
uterus, and there is no evidence tending to Also, in stating for what injuries plain- show that her appendix and uterus were intiff's damages should be determined:
jured by the fall which it is claimed in this "Third, for any and all loss sustained by case she sustained in defendant's elevator, plaintiff, if any, by the impairment of her and there is no evidence tending to show ability and power to render such domestic that the surgical operation performed by services and perform such work as she,
Dr. Ballard became necessary because of as his wife, was accustomed to render to any injury sustained by her in the acciplaintiff in his household prior to such in dent complained of, and therefore the juries, including such loss of consortium plaintiff is not entitled to recover, and I as I have explained, and such of said serv
charge you to render a verdict in favor of ices as she would have continued to render
the defendant.” but for these injuries, and in determining
Defendant offered in evidence the files and the amount which you will allow plaintiff, records in the suit of Louise Blair (plainif any, under this third subdivision you she recovered $1,000 damages for the injury
tiff's wife) against this defendant, in which will deduct therefrom such sum as you may in question here, which judgment was paid. allow the plaintiff, if any, for any and all expenditures for help in his home for which They were excluded. They show that in you may have made him an allowance under that suit she alleged as damages expenses the second subdivision last above."
for medical and surgical care, medicine, The contributory negligence of plaintiff's
and nursing already incurred and to be wife is established, it is claimed, as matter incurred, and loss of earning capacity, and of law, for which reason the court should large sums which she would have been able have directed a verdict, and, failing this, to earn as housekeeper, etc. The right of should have granted a new trial. The re
the husband in a case of this nature to results of the injury to plaintiff's wife of his wife was and is questioned.
cover damages for the loss of the services claimed by the plaintiff are not, it is said, made out; they are plainly conjectural. Messrs. Stoddard & McMillan, for ap
In plaintiff's bill of the particulars of his pellant: damages is an item for "expenses in connec- The verdict of a jury should not rest tion with medical and surgical care and upon conjecture or guess work. The negliattention, medicine, care, id nursing of gence alleged, and the injuries for which Louise Blair, wife of plaintiff, heretofore damages are claimed, must bear the relaincurred and to be hereafter incurred $500," ' tion of cause and effect; and without proof that the injury is the rational and proxi- , 350; Fuller v. Naugatuck R. Co. 21 Conn. mate result of the negligence alleged, there 557, 2 Am. Neg. Cas. 266; McKinney v. can be no recovery.
Western Stage Co. 4 Iowa, 420; Cregin v. Smith v. Hockenberry, 138 Mich. 129, 101 Brooklyn Crosstown R. Co. 75 N. Y. 192, 31 N. W. 207; Powers v. Pere Marquette R. Am. Rep. 459; McDonald v. Chicago & Co. 143 Mich. 379, 106 N. W. 1117; IN. W. R. Co. 26 Iowa, 124, 96 Am. Dec. 114, Mitchell v. Chicago & G. T. R. Co. 51 Mich. 3 Am. Neg. Cas. 307; Hopkins v. Atlantic 236, 38 Am. Rep. 566, 16 N. W. 388, 4 Am. & St. L. R. Co. 36 N. H. 9, 72 Am. Dec. Neg. Cas. 37; Manning v. Chicago & W. M. 287; 2 Thomp. Neg. | 15, p. 1240; Cooley, R. Co. 105 Mich. 260, 63 N. W. 312; Perry Torts, 226, 227; Kelley v. New York, N. H. v. Michigan C. R. Co. 108 Mich. 130, 65 & H, R. Co. 168 Mass, 308, 38 L.R.A. 631, N. W. 608; Fuller v. Ann Arbor R. Co. 141 60 Am. St. Rep. 397, 46 N. E. 1063; HarMich, 66, 104 N. W. 414, 18 Am. Neg. Rep. mon v. Old Colony R. Co. 165 Mass. 100, 30 489; Sheon v. Kerr-Murray Mfg. Co. 146 L.R.A. 658, 52 Am. St. Rep. 499, 42 N. E. Mich. 99, 109 N. W. 40; Brininstool v. 505; 6 Thomp. Neg. | 7341; Southern R. Michigan United R. Co. 157 Mich. 172, 121 Co. v. Crowder, 135 Ala. 417, 33 So. 335; N. W. 728; Scott v. Boyne City, G. & A. R. Birmingham Southern R. Co. v. Lintner, Co. 169 Mich. 265, 135 N. W. 110; McCoy 141 Ala. 420, 109 Am. St. Rep. 40, 8 So. v. Michigan Screw Co. 180 Mich. 454, 363, 3 Ann. Cas. 461; Adams Hotel Co. L.R.A. –, 147 N. W. 572, 5 N. C. C. A. v. Cobb, 3 Ind. Terr. 50, 53 S. W. 478; 455.
Kirkpatrick v. Metropolitan Street R. Co. Plaintiff cannot recover damages for loss 129 Mo. App. 524, 107 S. W. 1025; Hey v. of consortium.
Prime, 197 Mass. 474, 17 L.R.A.(N.S.) Marri v. Stamford Street R. Co. 84 Conn. 570, 84 N. E. 141; Indianapolis & M. Rapid 9, 33 L.R.A. (N.S.) 1042, 78 Atl. 582, Ann. Transit Co. v. Reeder, 42 1:id. App. 520, 85 Cas. 1912B, 1120; Feneff v. New York C. N. E. 1042; Indianapolis Traction & Ter& H. R. R. Co. 203 Mass. 278, 24 L.R.A. minal Co. v. Menze, 173 Ind. 31, 88 N. E. (N.S.) 1024, 133 Am. St. Rep. 291, 89 929, 89 N. E. 370; Lagergren v. National N. E. 436; Gambino v. Manufacturers' Coal Coke & Coal Co. 117 N. Y. Supp. 92; Town& Coke Co. 175 Mo. App. 653, 158 S. W. 77; send v. Wilmington City R. Co. 7 Penn. Bolger v. Boston Elev. R. Co. 205 Mass. 420, 91 N. E. 389; Brown v. Kistleman, (Del.) 255, 78 Atl. 635; Holleman v. Har177 Ind. 692, 40 L.R.A. (N.S.) 236, 98 N. E. ward, 119 N. C. 150, 34 L.R.A. 803, 56 Am. 631; Goldman v. Cohen, 30 Misc. 336, 63 St. Rep. 672, 25 S. E. 972; Kimberly v. N. Y. Supp. 459; 21 Cyc. 1617, 1621, 1626; Howland, 143 N. C. 398, 7 L.R.A. (N.S.) Kelley v. New York, N. H. & H. R. Co. 545, 55 S. E. 778; Selleck v. Janesville, 104 168 Mass. 308, 38 L.R.A. 631, 60 Am. St. Wis. 570, 47 L.R.A. 691, 76 Am. St. Rep. Rep. 397, 46 N. E. 1063; Bowdle v. Detroit 892, 80 N. W. 944. Street R. Co. 103 Mich. 272, 50 Am. St. Rep. 366, 61 N. W. 529, 4 Am. Veg. Cas. Ostrander, J., delivered the opinion of 180; Gorton v. Harmon, 152 Mich. 473, 116 the court: N. W. 443, 15 Ann. Cas. 461; Nelson v. in the brief for appellant argument is Lake Shore & M. S. R. Co. 104 Mich. 582, 62 addressed to the alleged positive character N. W. 993; Baldwin, Personal Injuries, of the evidence establishing the negligence § 428.
of plaintiff's wife, the uncertainty of the Messrs. De Foe, Hall, & Converse, for evidence to establish the injuries claimed to appellee:
have been received by her, the rulings of the Plaintiff was entitled to recover damages court, and the charge upon the subject of for loss of consortium.
plaintiff's loss of consortium, the alleged Baker v. Bolton (1808), 1 Campb. 493, 10 excessive recovery, and the verdict o. the Revised Rep. 734; Osborn v. Gillett, L. R. jury, which is, it is claimed, opposed to 8 Exch. 88, 42 L. J. Exch. N. S. 53; Carey the weight of evidence. These are the subv. Berkshire R. Co. 1 Cush. 475, 48 Am. jects of principal discussion and will be Dec. 616; Hyatt v. Adams, 16 Mich. 189; considered. Eden v. Lexington & F. R. Co. 14 B. Mon. 1. It is not clear whether plaintiff's wife 204; Kearney v. Boston & W. R. Corp. 9 did or did not exercise a proper degree of Cush. 108; Whitford v. Panama R. Co. 23 care in entering the elevator under the N. Y. 465; Berger v. Jacobs, 21 Mich. 215; circumstances she says existed there. The Baldwin, Personal Injuries, | 425; Gregory question was for the jury. v. Oakland Motor Car Co. Mich. 147 2. The nature and extent of the injuries N. W. 614; Skoglund v. Minneapolis Street sustained by plaintiff's wife are uncertain. R. Co. 45 Minn. 330, 11 L.R.A. 222, 22 Am. The opinions of the medical men go no furSt. Rep. 733, 47 N. W. 1071; Blair v. ther than this,—that her condition at the Chicago & A. R. Co. 89 Mo. 383, 1 S. W.' time of the operation and before and after
it is not in doubt, and, with certain excep-, all of which are matters of sentiment affecttions, might have been the result of the ing the mind and heart, and not the pocket, injury. These witnesses relate also other he cannot recover damages therefor. In causes for such a condition as existed, and this case no evil motive or wilful misconit is plaintiff's claim that by his testimony duct on the part of the defendant is claimed. he has eliminated these other possible
This is unlike an action on the case causes from consideration, for which rea- for seduotion, or alienation of the wife's son the proximate cause of her condition is affections, which stand upon peculiar reanot conjectural. On the other hand, it is sons." the contention of defendant that the testi- At common law when a married woman
equally convincing that her was injured in her person she was joined troubles, relieved by the surgeons, were of with her husband in an action for the inlong standing. It is very doubtful whether, jury, and in such action nothing could be exercising themselves wholly outside the recovered for loss of her services or for the domain of conjecture and wholly within expenses to which the husband had been put that of proper and reasonable deduction in taking care of and curing her. There from such testimony as they believed, the was no allowance for her loss of ability to jury could have reached either material earn wages, render services, and be helpful conclusion. As true in Farrell v. to others, because these elements of damHaze, 157 Mich. 374, 391, 392, 122 N. W. age, so far as recoverable at all, belonged 197, a final condition of the patient was to the husband. For such loss of services made certain by expert testimony. In the and such expenses the husband alone could Farrell Case it was admitted that the cause 1 Chitty, Pl. 84. The common law of the condition was matter for expert gave the husband the right to the labor, determination. In the case at bar the acei- services, and earnings of his wife. dent (in the Farrell Case the treatment) It is not now an answer to the wife's suit might have produced the known condition. to recover damages for injuries to her perBut in this, as in that, case, the testimony son that her husband is not joined as plainseems to fall short of showing that it is tiff. The legislature has relieved her of cermore probable the conditions, relieved by tain disabilities so-called, and has denied the surgical operation, were caused by to her husband the right to her earnings the accident. So much plaintiff was bound and the profits of any business she may to prove. Otherwise recovery depends upon carry on. It has not, however, put her doattributing to a particular cause an injury mestic duties and labor, performed in and which may as well be attributed to another about her home for her family upon a pe
cuniary basis, nor meant to classify such 3. Consortium has been defined as the per duties as services, nor to permit her to son's affection, society, or aid; the right recover damages for loss of ability to perto the conjugal fellowship of the wife, to form them. Gregory v. Oakland Motor Car her company, co-operation, and aid in
Co. Mich. 147 N. W. 614. Where conjugal relation. 8 Cyc. 614. See Jacob- there is no intentional wrong, the ordinary sen v. Siddal, 12 Or. 284, 53 Am. Rep. 360, rule of damages in every case goes no fur7 Pac. 108; 21 Cyc. 1525; Bouvier's Law ther than to allow pecuniary compensation Dict. 402.
for the impairment or injury directly done. “The right of consortium is a right grow. If a husband is injured and recovers his ing out of the marital relation, which the damages, his wife cannot usually recover husband and wife have, respectively, to en. damages. The husband has usually, as a joy the society and companionship and af- result of his action, been compensated for fection of each other in their life together.” his pain and suffering, past and future, for Feneff v. New York C. & H. R. R. Co. 203 loss of time, for diminution of capacity to Mass. 278, 24 L.R.A.(N.S.) 1024, 133 Am. earn money. The minor children 'of an inSt. Rep. 291, 89 N. E. 436.
jured father and those of an injured mother “Per quod consortium amisit” (by which may suffer on account of the injury, but it he has lost the companionship) was the has never been considered that they had an phrase used when at the common law plain- action therefor. The negligent defendant tiff declared for any bodily injury done to is supposed to have made full pecuniary his wife by a third person. 3 Bl. Com. 140. compensation to the injured parent. Their Appellant says: “We insist that for loss loss is regarded, not as direct, but conseor diminution of his wife's marriage fel- quential and remote. lowship, of her company and co-operation, If a husband may recover for loss of conthat even if her society and companionship sortium resulting from physical injury to is less satisfactory than formerly, that in the wife occasioned by negligent conduct of his association and intercourse with her he the defendant, the wife may recover for loss finds less comfort, pleasure, or happiness,' of consortium of the husband under similar,
conditions. The right affected, if it may be, tions upon the subject of loss of consortium, properly called a right, is mutual. No rea- and, more doubtful, but nevertheless tangi. soning will now support a recovery by one ble, plaintiff did not fairly sustain the which will deny it to the other spouse. burden of proving that the probable cause
“No case has been brought to our atten- of the wife's injuries, relieved by a surgical tion, and after an extended examination we operation at the cost of the husband, was have found none, in which an action for a the injury for which defendant was held reloss of consortium alone has been main-sponsible. tained merely because of an injury to a The judgment is reversed and a new trial person of the other spouse, for which the granted. other has recovered, or is entitled to recover, full compensation in his own name, when the only effect upon the plaintiff's right of consortium is that, through the
MISSISSIPPI SUPREME COURT. physical or mental disability of the other, the companionship is less satisfactory and
STATE OF MISSISSIPPI, Appt., valuable than before the injury.” Feneff v.
T. J. PHILLIPS.
PHILLIP New York C. & H. R. R. Co. 203 Mass. 278, 280, 24 L.R.A. (N.S.) 1024, 133 Am..St. Rep.
(- Miss. — 67 So. 651.) 291, 89 N. E. 436.
If plaintiff has in fact, on account of his Constitutional law equal protection wife's injury, lost a service which she habit- keeping liquor at social club. ually rendered, then, as service, and accord- 1. A state does not unconstitutionally deing to the pecuniary value of it, he ought prive one of equal protection of the laws to be permitted to recover. Recovery should by forbidding the keeping of intoxicating
liquor in any locker or other place in any be according to the fact. For loss of consortium, of the undefined and indefinable in although a property right in such liquors
social club, or carrying it to such club, fluence of either spouse in the family rela- is recognized by the law. tion, and the pleasure of the relationship, Statute title
scope. neither may recover. The Massachusetts de
2. A provision prohibiting the carrying cision in Kelley v. New York, N. H. & H. of intoxicating liquors into a club room is R. Co. 168 Mass. 308, 38 L.R.A. 631, 60 Am. within a title indicating that the statute is St. Rep. 397, 46 N. E. 1063, relied upon in to prohibit the sale of such liquors. Gregory v. Oakland Motor Car Co. supra, and often cited in text-books and opinions
(March 1, 1915.) of judges, has been distinctly overruled as
PPEAL by the State from a judgment to the point now being considered. Feneff A
of the Circuit Court for Leflore County v. New York C. & H. R. R. Co. supra; Bolger sustaining a demurrer to an affida vit chargv. Boston Elev. R. Co. 205 Mass. 420, 91 N. ing defendant with unlawfully carrying inE. 389. While our own former decisions
toxicating liquor into a social club,
Redo not distinctly rule the point, still Bowdle
versed. v. Detroit Street R. Co. 103 Mich, 272, 50
The facts are stated in the opinion. Am. St. Rep. 366, 61 N. W. 529, 4 Am. Neg.
Mr. George H. Ethridge, Assistant AtCas. 180, is plainly not opposed to it. Nortorney General, for the State: do I think Gregory v. Oakland Motor Car
The statute forbidding the keeping of inCo. wrongly decided; no specific claim hav-toxicating liquor in any locker or other ing been made that the damages were ex
place in any social club, or carrying it to cessive, and the objection being that the such club, is not unconstitutional. husband could not recover at all for loss of
Perrin v. United States, 232 U. S. 478, services of his wife. As to the elements 58 L. ed. 691, 34 Sup. Ct. Rep. 387; United which may be considered by a jury in fixing the pecuniary loss of the husband, the Note. As to power to prohibit the keepcharge delivered in that case was in some re-ing of intoxicating liquor, irrespective of spects opposed to the conclusion I have any intention to sell it in violation of law, reached (although to that portion of the
see note to Eidge v. Bessemer, 26 L.R.A.
(N.S.) 394. charge no objection appears to have been
As to power to prohibit or restrict one's made), and some of the decisions of other using intoxicating liquor or having the same courts quoted with approval permit a jury in his possession for his own use, see note to consider what I now think they should to Com. v. Campbell, 24 L.R.A. (X.S.) 173. not be permitted to consider in estimating | clubs dispensing liquor to members is dis
The applicability of liquor laws to social the value of the wife's services.
cussed in the note to State ex rel. Harvey v. The testimony referred to should not have Missouri Athletic Club, L.R.A.1915C, 376, been received; the court erred in his instruc-1 and earlier notes there referred to.
States 7. Holliday, 3 Wall, 407, 18 L. ed., malt, alcoholic, and intoxicating liquor, to 182; United States v. Sutton, 215 U. S., wit, one bottle of whisky then and there 291, 54 L. ed. 200, 30 Sup. Ct. Rep. 116; containing more than one half of 1 per cent Hallowell v. United States, 221 U. S. 317, of alcohol." 55 L. ed. 750, 31 Sup. Ct. Rep. 587; Ex Appellee appealed to the circuit court and parte Webb, 225 U. S. 663, 56 L. ed. 1248, there demurred to the affidavit, which de32 Sup. Ct. Rep. 769; United States v. murrer was sustained. From the judgment Wright, 229 U. S. 226, 57 L. ed. 1160, 33 of the circuit court sustaining appellant's Sup. Ct. Rep. 630; Mugler v. Kansas, 123 U. demurrer, the state prosecuted this appeal. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; This prosecution was founded upon § 4, Bartemeyer v. Iowa, 18 Wall. 129, 21 L. ed. chap. 127, Miss. Laws 1914, which read 929; Munn v. Illinois, 94 U. S. 124, 24 L. thus: “That no intoxicating liquor within ed. 83; Giozza v. Tiernan, 148 U. S. 657, 37 | the meaning of this act shall be kept in L. ed. 599, 13 Sup. Ct. Rep. 721; State v. any locker or other place in any social club Bixman, 162 Mo. 1, 62 S. W. 828; Vance v. or organization for use therein, and all perW. A. Vandercook Co. 170 U. S. 438, 42 L. sons carrying such liquor to such club or ed. 1100, 18 Sup. Ct. Rep. 674.
locker for use therein or keeping the same Messrs. Wells, May, & Sanders and for such use, shall be guilty of a violation J. A. Tyson, for appellee:
of this act." . Section 4 of Mississippi Laws 1914, chap. The demurrer of defendant below was 127, is unconstitutional and void and ob-sustained upon the theory that said section noxious to the Federal and state Constitu- is unconstitntional because it contravenes tions.
the 14th Amendment to the Constitution Eidge v. Bessemer, 164 Ala. 599, 26 L.R.A. of the United States, as well as article 3, (N.S.) 394, 51 So. 246; State v. Gilman, 33 $ 14, of our state Constitution. W. Va. 146, 6 L.R.A. 847, 10 S. E. 283; It was also urged below, and here, that Ex parte Brown, 38 Tex. Crim. Rep. 295, 70 chapter 127, Laws 1914, is void because it Am. St. Rep. 743, 42 S. W. 554; State v. violates $ 71 of the state Constitution, Goodwill, 33 W. Va. 179, 6 L.R.A. 621, 25 referring to the title of bills introduced in Am. St. Rep. 863, 10 S. E. 285; State v. the state legislature. Williams, 146 N. C. 618, 17 L.R.A.(N.S.) The position of appellant, briefly stated, 299, 61 S. E. 61, 14 Ann. Cas. 562; Com. v. is that the statute under review recognizes Campbell, 133 Ky. 50, 24 L.R.A.(N.S.) 172, that intoxicating liquors are property, and 117 S. W. 383, 19 Ann. Cas. 159; Ex parte that one may lawfully own, possess, and Mon Luck, 29 Or. 421, 32 L.R.A. 738, 54 use the same, and that the limitation upon Am. St. Rep. 804, 44 Pac. 693; State v. Gil- this right imposed by the statute bears no man, 33 W. Va. 146, 6 L.R.A. 847, 10 S. E. reasonable relation to the policy of the state 283; State v. Williams, 146 N. C. 618, 17 to suppress the sale of intoxicants, and also L.R.A. (N.S.) 299, 61 S. E. 61, 14 Ann. Cas. that the statute is discriminatory and de562; Nicol v. Ames, 173 U. S. 509, 43 L. ed. nies to the persons involved equal protec786, 19 Sup. Ct. Rep. 522; Magoun v. Il-tion of the laws. For these reasons, it is linois Trust & Sav. Bank, 170 U. S. 283, 42 claimed that the statute violates the 14th L. ed. 1037, 18 Sup. Ct. Rep. 594; Gulf, c. Amendment of the Constitution of the & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 United States and article 3, § 14, of our L. ed. 666, 17 Sup. Ct. Rep. 255; Adams v. own state Constitution. To support his Standard Oil Co. 97 Miss. 879, 53 So. 692; contention appellee cites the following cases, Ballard v. Mississippi Cotton Oil Co. 81 viz.: Eidge v. Bessemer, 164 Ala. 599, 26 Miss. 507, 62 L.R.A. 407, 95 Am. St. Rep. L.R.A.(N.S.) 394, 51 So. 246; State v. Gil476, 34 So. 533; Hunt v. Wright, 70 Miss. man, 33 W. Va. 146, 6 L.R.A. 847, 10 S. E. 298, 11 So. 608; Ex parte Wren, 63 Misc. 283; Ex parte Brown, 38 Tex. Crim. Rep. 512, 56 Am. Rep. 825; State v. Fulks, 207 295, 70 Am. St. Rep. 743, 42 S. W. 554; Mo. 26, 15 L.R.A.(N.S.) 430, 105 S. W. 733, State v. Goodwill, 33 W. Va. 179, 6 L.R.A. 13 Ann. Cas. 732.
621, 25 Am. St. Rep. 863, 10 S. E. 285;
State v. Williams, 146 N. C. 618, 17 L.R.A. Cook, J., delivered the opinion of the (N.S.) 299, 61 S. E. 61, 14 Ann. Cas. 562; court:
Com. v. Campbell, 133 Ky. 50, 24 L.R.A. Appellee was convicted by a justice of (N.S.) 172, 117 S. W. 383, 19 Ann. Cas. the peace upon an affidavit charging that he 159; Ex parte Mon Luck, 29 Or. 421, 32 "on or before the 23d day of November, L.R.A. 738, 54 Am. St. Rep. 804, 44 Pac. 1914, unlawfully did then and there carry 693; Noble State Bank v. Haskell, 219 C. to the club of the Benevolent Protective S. 104, 55 L. ed. 112, 32 L.R.A.(N.S.) 1064, Order of Elks, the same then and there be- 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487. ing a social club and organization, for the Eidge v. Bessemer, supra, decided by the use therein as a beverage, vinous, spirituous,' supreme court of Alabama, it seems to us,