Rose v. Supreme Court, Order of Patricians , 126 Mich. 577 ( 1901 )

Grant, J.

(after stating the facts). In submitting the case to the jury, the circuit judge held, without stating any reasons, that the case was one for the determination of the jury, and left all the questions of fact to them. The articles and by-laws of this association in regard to death and other claims are the same in effect as those of the Knights of Maccabees and other fraternal organizations, which have been frequently before this and other courts. They are valid, and have been so often discussed that further discussion is unnecessary. The cases are referred to in Raymond v. Insurance Co., 114 Mich. 386 (72 N. W. 254).

1. The proceedings provided by the constitution and by-laws of the defendant are very arbitrary and unusual. It is incumbent upon the officers charged with such examination to pursue the methods provided with strictness, and to give to the claimant the hearing provided for. Three, a minority of the board of directors, are authorized to make an examination and to pass upon the claim in the first instance. The examination was conducted with secrecy by the attorney for the defendant, who was also one of its directors. Without notice to the plaintiff, the board of directors prejudged his claim upon these ex parte affidavits and report of. the attorney, and disallowed it. Notice was then given to him to appear before the board, at which meeting only three of the directors were present, including the attorney for the board, who had made the ex parte examination. Common justice would certainly require that the witnesses against the claim should be produced before the boárd, and be subjected to cross-examination. Whether, however, such a course was authorized by the constitution of the defendant, we need not determine. Plaintiff properly took his appeal to the supreme court of the order, as he was required to do. This appeal is not to a committee of the supreme court, but to the supreme court itself. Section 111 cannot be construed as authorizing such committee to pass upon the claim. The claimant is entitled to produce his testimony before the entire court, and not before the committee thereof, and it is the duty of the defendant to there produce its testimony against the validity of the claim. The burden is upon it. No evidence whatever was submitted to the supreme court, and that body acted upon the recommendation of the committee that the claim be disallowed. The attorney for the defendant did not produce any testimony, or apparently seek any in favor of the plaintiff. Whether he, the board of directors, or the committee of the supreme court based the rejection of this claim upon these ex parte affidavits alone, or upon the further report of the attorney that she had made other false and untrue statements, of which he produced no evidence, does not appear. The claim is to be heard de novo upon appeal to the supreme court, and both parties are entitled to there produce witnesses. Plaintiff was deprived of the hearing to which he was entitled, and therefore he may maintain a suit at law to enforce his claim.

Counsel for the defendant cite Fillmore v. Knights of Maccabees, 109 Mich. 13 (66 N. W. 675), in support of their contention. We did not pass there upon the validity of the action of the committee. The complainant in that case had not pursued the remedy provided for by the defendant, as has the plaintiff in this case.

2. A physician who had been employed by the deceased was called as a witness by the defendant, had testified to his attendance upon her, and he was then asked:

“ Excluding any knowledge or information you obtained while treating the insured, and judging from her appearance at the time of the treatment, what is your opinion whether she was a woman in good health and sound body, and a woman who usually enjoyed good health ? ”

The refusal of the court to permit an answer to fhi¡a question is alleged as error. It was excluded under section 10181, 3 Comp. Laws 1897. Counsel rely upon Edington v. Insurance Co., 77 N. Y. 564, where the question was asked :

“Excluding any knowledge or information that you obtained while treating deceased, and judging from his appearance from that time until 1867, what is your opinion as to whether he was a man in good health?”

The difference between the two cases is apparent. In the New York case, any information or knowledge of his appearance while the physician treated him was not asked, for. The physician had seen him many times after his. employment had ceased, and his appearance upon which his opinion was based was expressly limited to that period. In the present case the witness was asked to give an opinion based upon her appearance at the time of the treatment. This was excluded by the statute.

Some questions were raised upon the charge of the court, which are not of sufficient importance to discuss. We think the charge was a correct, embodiment of the law.

Judgment affirmed.

The other Justices concurred.