A mutual benefit society's laws provided that the society had power to pass on any claim for a death loss, and that its decision on any such claim should be final, and that no suit, at law or in equity, should be brought on such claim. Plaintiff's husband became a member of the society, and held an endowment certificate, which, upon his death while a member in good stand. ing, would entitle plaintiff to receive a certain amount. After her husband's death, plaintiff presented her claim to the society, which, after a hearing, was rejected. Held, in an action by her on the certificate, where no charge was made that the society acted fraudulently, or contrary to its rules, that its decision was final.

Case made from circuit court, Macomb county; ARTHUR L. CANFIELD, Judge. Action by Alice B. Canfield against the Great Camp of the Knights of the Maccabees to recover on an endowment certificate on the death of her husband, who was a member of defendant. Judgment for defendant. Plaintiff appeals. Affirmed. Eldredge & Spier, for appellant. Markey & Hall, for appellee.

GRANT, J. This case was tried by the court, and the finding contains the following material facts: Defendant is a mutual benefit association incorporated under Act 89, Pub. Acts 1883, for the improve. inent morally, socially, and intellectually of its members, and for the purpose of establishing a benefit fund, from which shall be paid a certain sum to the member, or his widow, or certain other relatives, as he may direct, and as the endowment laws of the order provide. Its constitution provides for a great camp, composed of certain officers and one representative from each of the subordinate tents in the state. This great camp meets annually, and its members are selected annually. Three of the principal officers constitute the executive committee. Article 18. § 2, of its laws reads as follows: "The executive committee shall have power to pass on all death claims, and, if in their judgment any such claim is not on its face a valid one, they shall notify the beneficiary or beneficiaries of the deceased members thereof, and give them or their attorneys an opportunity to appear before such committee within sixty days thereafter, and present such evidence as they may have to establish the justness or validity of such claim, and the

upon the justness or validity of such claim, and such decision shall be binding upon such claimant, unless an appeal is taken to the great camp. The notice of the appeal from the decision of the said committee must be filed with the great record keeper within sixty days thereafter. The decision of the great camp, in all such cases, shall be final, and no suit in law or equity shall be commenced or maintained by any member or beneficiary. Plaintiff's husband, now deceased, became a member of the defendant, and received what is termed a "half endowment certificate," which entitled him to receive one assessment on the membership, not exceeding $1,000, as a benefit to his wife, upon satisfactory proof of his death, and the surrender of the certificate, provided he shall have, in every particular, complied with all the rules and regulations of the order. Upon his death plaintiff presented her claim to the committee, which decided against it on the ground that at the time of his death he was not a member in good standing, but had been duly and regularly suspended therefrom, in accordance with the rules and regulations thereof. She then appealed to the grand camp, which also disallowed the claim, after a full examination and hearing. She then brought this suit, and judgment was rendered therein against her.

It is claimed on behalf of plaintiff that the provision above quoted, which makes the decision of the great camp final, is contrary to public policy, and void, in that it ousts the court of jurisdiction. No charge is made that either the committee or the grand camp acted fraudulently, or in any manner contrary to the rules and regulations of the order. I am unable to see any difference between the present case and that of Van Poucke v. Society, 63 Mich. 378, 29 N. W. Rep. 863. These organizations are purely voluntary, and it may well be considered by their members important that claims of this character should be determined by methods more inexpensive than resorts to the courts. This reason is well expressed by my Brother CHAMPLIN in the case above cited. Plaintiff seeks to maintain a distinction between that case and the present one, in that the plaintiff was himself a member claiming for "sick benefits," while the plaintiff here is not a member, and had no voice in the selection of members of the tribunal. Her right depends solely upon the voluntary act of her husband in becoming a member. Her right to receive the benefit depended upon his complying with the constitution and rules to which he assented, and which became a part of his contract. I can see no reason why a different rule should apply to plaintiff than to a member making a claim for benefits. Similar provisions have been sustained by the courts. Anaconda, etc., No. 12 of Red Men v. Murbach, 13 Md. 91; Toram v. Association, 4 Pa. St. 519; Society v. Vandyke, 2 Whart. 309; Woolsey v. Independent Order of Odd Fellows, 61 Iowa, 492, 16 N. W. Rep. 576; Rood v. Association, 31 Fed. Rep. 62. Judgment affirmed. The other justices concurred.

ants was not surrendered or canceled otherwise than by the agreement which superseded it. The defendants having acquired the right under the agreement to the possession of the mill and property, put their men in there in the month of April and earlier to prepare the mill for the season's sawing, and, when they had got it nearly prepared for work, the complainants then claimed that they had rights under that lease, and attempted to dispossess the defendants, and to get possession of the property for the purpose, as is quite apparent, of extorting blackmail from the defendants, and compelling them to buy their peace. They obtained an injunction. As they well knew, if the defendants obeyed it, it would work great damage and injury to them, and before the suit could be gotten out of the way they would suffer great inconvenience, loss, and damage. The defendants refused to deliver up possession. It was their property, and in their own possession, and the court should not have awarded an injunction to dispossess them. They proceeded against the defendants for contempt of court in disobeying the injunction, under those provisions of the statute which allow proceedings for contempt in the enforcement of civil remedies. A reference was taken under this proceeding to ascertain the extent that their several rights and remedies had been impaired, and report the same to the court. The proof is returned in the record. Upon hearing before the court, the Honorable S. B. DABOLL, circuit judge, made the following order: "In this matter, the defendants, who were heretofore enjoined by an injunction of this court from interfering with certain property as set forth in the proceedings therein, and on showing duly made, have been adjudged guilty of contempt in disobeying such injunction; and, the same having been referred to J. S. Monroe, a circuit court commissioner, to take evidence of the amount of damages sustained by the complainants on account of the said contempt; and the said J. S. Monroe, commissioner as aforesaid, having made his report, whereby he reports that he is unable to decide the amount of damages, and returning the evidence taken before him; and the court having examined the said evidence and report, and having duly considered the same, it is adjudged and decreed that the said defendants, Alfred Weed and Mar. shall Hubbard, are guilty of said contempt, and that they pay to the complainants, within ten days after the service of a copy of this order and decree, damages as follows: For attorney's fees and expenses, $160; clerk's fees, $5; and the further sum of $25, commissioner's fees; for witness' fees and expenses, $10; amounting in all to the sum of $200; and, in default of said payment within the said ten days, that the complainants have an exe. cution therefor. Dated August 25, 1890. S. B. DABOLL, Circuit Judge. From this order the defendants appeal.

The same circuit judge had previously, on the 30th day of June, 1890, entered his order, upon the coming in of the answer of defendants, dissolving the injunction

theretofore issued, and restoring the possession of the mill property described in the injunction to the defendants. The order made by the circuit judge in this matter of contempt merely orders that the costs and expenses of the contempt proceedings shall be paid by the defendants to the complainants. This order is unauthorized by the statute. The statute reads as follows: "If an actual loss or injury has been produced to any party by the misconduct alleged, the court shall order a sufficient sum to be paid by the defendant to such party to indemnify him, and to satisfy his costs and expenses, instead of imposing a fine upon such defendant; and in such case the payment and acceptance of such sum shall be an absolute bar to any action by such aggrieved party to recover damages for such injury or loss." How. St. § 7277. It will be ob

served that the statute authorizes this imposition in place of a fine, and it is for the purpose of protecting the civil rights and remedies of the party, and to compensate him for the injury or loss occasioned by the misconduct alleged, and it is only when an actual loss or injury has been produced to the party by the misconducts alleged, and that is made to appear to the satisfaction of the court, and that some sum sufficient to compensate the party or indemnify him is adjudged, that the court can impose the costs and expenses to be paid by such party. In this case there is no finding, and in fact the testimony would justify no finding of the court that an actual loss or injury had been produced to the complainants by the misconduct alleged, and the court acted wholly without authority in compelling the defendants in such a case to pay the costs and expenses of the proceedings to the complainants. The action of the complainants from the first was unjustifiable. Their proceedings to obtain an injunction were a fraud and imposition upon the court, and it would be the grossest injustice to compel the defendants in this suit to pay them the costs and expenses that they had been put to in order to impose upon the court in the manner in which they have. It is true that the orders and process of a court, regularly issued, should be obeyed, and the court has it in its power, by punishment for contempt for disobedience of them, to protect its dignity, and enforce its decrees. But in cases like this, where the orders of the court have been prostituted by unworthy methods in seeking unworthy ends, and where a party appeals to the court for process of contempt to enforce his civil remedies when he has none to enforce, the courts are not called upon to protect their dignity by the imposition of any fine or costs. I think the decree appealed from should be reversed, and the contempt proceedings dismissed, with costs of both courts against the complainants.

MORSE and MCGRATH, JJ., concurred with CHAMPLIN, C. J.

GRANT, J. The bill of complaint in this cause was filed April 7, 1890, and a prelimi

nary injunction granted ex parte, restraining the defendants from interfering with the property described in the bill, or with the complainants' possession thereof, until the further order of the court. Defendants paid no heed to the injunction, but took and retained forcible possession of the property in defiance thereof. They took no steps to obtain a dissolution until June 20, 1890, when they filed their answer, and met the equities of the bill so fully that the court dissolved the injunction. April 22, 1890, complainants intituted these proceedings to punish the defendants for contempt of court in violating the injunction. August 25, 1890, they were adjudged guilty of contempt, and were ordered to pay damages as follows:

For attorney's fees and expenses, "clerk's fees,

"commissioner's fees,

"witnesses' fees and expenses,

$160 00

5 00 25 00 10 00

From this order defendants appeal. Three objections are raised to the validity of the order: (1) The circuit judge had no jurisdiction to allow the order for an injunction; (2) defendants were in possession of the property at and prior to the service of the injunction, and could not be dispossessed thereby; (3) the measure of damages included only the taxable costs.

1. The judge of the twelfth judicial circuit, within which Gogebic county is sit. uated, was absent from the state sick. The adjoining circuit was the twenty. fifth, but there was a vacancy there on account of the resignation of the judge. Judge STEERE, of the eleventh circuit, had been appointed by the governor to fill such vacancy until the election. He was therefore the acting judge of the twentyfifth circuit, with full power to do all acts which a regularly elected judge might do. By chancery rule 112 the circuit court commissioner was prohibited from issuing an injunction in this case. But, aside from these questions, it will be presumed that the circuit judge acted upon due proof of the existence of the facts necessary to give him jurisdiction. Landon v. Comet, 62 Mich. 80, 28 N. W. Rep. 788. Defendants have made no showing to rebut this presumption.

2. The bill made out a case for granting an ex parte preliminary injunction. It was then the clear duty of the defendants to respect and obey the injunction. They could have answered immediately, and have promptly moved the court for a dissolution or modification. They could easily have done this within five or six days. But they chose to take the law into their own hands, and to wait more than two months before answering and taking that orderly course dictated alike by reason and law. Such conduct cannot be too severely reprimanded. They cannot in this proceeding be held on the merits of the controversy. By the terms of the lease executed by defendants to complainants, the complainants were entitled to possession, and claimed that they had it. Defendants in their answer claim that this lease had been superseded by other ar

rangements, and that they were in possession. The property was a saw-mill, which was not run in the winter, and this controversy appears to have arisen in the spring, when each party desired to put the mill in repair for the season's work. There was no actual occupancy of the mill during the winter. If the defendants were in the actual possession of the property, fairly obtained, they ought not to have been dispossessed by an ex parte in. junction. Under such circumstances, they would have been justified in retaining possession until they could have applied to the court. This proceeding was brought under How. St. § 7277, which gives the court jurisdiction only in case of "an act ual loss or injury which has been produced to any party by the misconduct alleged." No actual loss or injury was found by the court, and the proceedings should therefore have been dismissed. The items decreed to be paid were costs which would follow a finding of loss or injury. Without such loss or injury costs could not be decreed. For this reason the order appealed from must be reversed, and proceedings dismissed, with costs of both courts against the complainants.

LONG, J., concurred with Grant, J.

ZANGER V. CITY OF DETROIT et al. (Supreme Court of Michigan. Oct. 9, 1891.) DEFECTIVE STREETS-OBSTRUCTIONS-REPAVING—

-NEGLIGENCE OF TRAVELER.

Plaintiff sued a city and a street-railway company to recover for being thrown from a delivery wagon and injured through the joint negligence of both. The evidence showed the wagon seat to have been on the front of a high box, which fitted within the wagon-bed, but was not fastened thereto; that the railway company, while engaged in repaving the track, had obstructed the south side of the street so that vehicles could not pass on that side, and had deposited along the north rail a ridge of sand six inches high, which had been taken out of the track; that plaintiff drove along on the south side until he saw the obstructions and the torn-up condition of the street, and then obliquely across to the other side, at a speed of from four to six miles an hour; and that, just as the left hind wheel came upon the ridge, the left forward wheel went into a hole in the pavement, which he had not seen, causing the wagon to tip, and the box on which he sat to capsize. The hole was about a foot square, and from five to seven inches deep, and was caused by the blocks having been worn out or removed. The obstruction had remained in the street but a few hours. Held, that it was proper to take the case from the jury, both on account of the contributory negligence of the plaintiff, and also because there was no proof of negligence on the part of the defendants. CHAMPLIN, C. J., dissenting.

Error to circuit court, Wayne county; CORNELIUS J. REILLY, Judge.

Action by Frank Zanger against the city of Detroit and the Detroit City Railway Company to recover for being thrown from a wagon and injured through the unsafe condition of a street. At the close of plaintiff's proofs, the court directed a verdict for defendants. Plaintiff brings error. Judgment affirmed.