Page:The Green Bag (1889–1914), Volume 18.pdf/197

 THE GREEN BAG other cases, both of which are decisions of New York trial courts, are as yet unreported, the de cision in the Mock case being without opinion and by Justice Gaynor recently advanced to the Supreme Court. The cases are united on the proposition that though a mutual benefit certifi cate is issued pursuant to an application in which the assured agrees to abide by the constitution and regulations of the association as they arc at the time of the application or may thereafter be constitutionally changed, yet the association has no authority to materially increase the assess ments without the consent of the assured. The Missouri case cites a long list of holdings to the effect that a contract of insurance made with a beneficial association can not be materially modi fied or changed without the express consent of the insured. (Grand Lodge of the A. O. U. W. of Mo. v. Slater, 44 Mo. App. 445; Sackberger v. Grand Lodge I. O. T. L., 73 Mo. App. loc. cit. 42; Smith v. Supreme Lodge K. of P., 83 Mo. App. 512; Morton v. Supreme Council, 100 Mo. App. 76, 73 S. W. 259), and a still longer list which declares that a stipulation to be governed by future changes in constitution and by-laws does not authorize a re duction of the amount of the certificate (Hysinger v. Supreme Lodge, 42 Mo. App. (St. L.) 635; Knights Templar, etc. v. Jarman, 104 Fed. 638, 44 C. C. A. 93; Supreme Council v. Getz, 112 Fed. 119, 50 C. C. A. 153; Pokrefky v. Association, 121 Mich. 456, 80 N. W. 240; Becker v. Benefit Society, 144 Pa. 232, 22 Atl. 699; Insurance Co. v. Connor, 17 Pa. 136; Hale v. Ins. Co. (Pa.) 31 Atl. 1066; Becker v. Mutual Benefit Ins. Co., 48 Mich. 610, 12 N. W. 874; Weiler v. Equitable Union (Sup.) 36 N. Y. Supp. 734; Langan v. Legion of Honor (Sup.) 70 N. Y. Supp. 663; Newhall v. Legion of Honor (Mass.) 63 N.E. i; Wist v. Grand Lodge A. O. U. W., 22 Or. 271, 29 Pac. 610; Gaut v. Legion of Honor (Tenn. Sup.) 64 S. E. 1070; Strauss v. Mutual Reserve Fund, 128 N. C. 465, 39 S. E. 55; Bragaw v. Knights of Honor (N. C.) 38 S. E. 905). Based upon this general doctrine that the contract may not be materially modified and the holdings that a scal ing of the amount of benefits is a material modi fication, is the court's conclusion that an increase in the amount of assessments is an equally mater ial modification which is not permissible unless the member consents. INTOXICATING LIQUORS. (Patent Medi cines.) N. Dak. — A sale of a medicine contain ing intoxicating liquor is held in State v. Williams, 104 Northwestern Reporter, 546, not to be neces sarily a violation of the prohibitory liquor law. North Dakota Laws 1890, c. 108, p. 305, as

amended by Rev. Codes 1899, § 7281, declares that the provisions of the section relating to phar macists shall not be construed to interfere in any manner with nor to prevent shop keepers from dealing in or selling commonly used medicines and poisons if such medicines and poisons are put up by a regular pharmacist, nor from dealing in or selling patent or proprietary medicines. Under this section it is held that it is a question for the jury whether a sale of an alleged medicine con taining intoxicating liquor was made in good faith for medicine or whether the liquids were sold as intoxicating liquors as a beverage and the fact that the sale was not made by a registered phar macist does not necessarily prove that the prepa ration sold was for use as a beverage. LICENSES (see Property). MASTER AND SERVANT. (Wrongful Dis missal — Question for Jury.) Eng. — In the case of Clouston and Co. (Limited) v. Corry, V. xxii, T. L. R. 107, the plaintiff was dismissed by his em ployers for the reason that he had been arrested for drunkenness and the use of bad language in public. He thereupon brought an action for wrongful dismissal, and the defendants justified the dismissal of the plaintiff on the ground that he had been arrested on a charge of drunkenness and disorderly conduct and fined therefor. At the trial of the action, the following question was left to the jury, viz. — Was the defendant justi fied in dismissing the plaintiff for his conduct? The jury found that the dismissal was not justi fied, and their verdict was allowed to be entered for the plaintiff, and the defendants appealed. It is said by the Judicial Committee of the Privy Council that this was a case in which, in an action brought to recover damages for alleged wrongful dismissal from service, a defence of justification was set up, and that allegations of misconduct, drunkenness, and the use of foul lan guage in public, resulting in a conviction, were made supported by strong evidence that was admitted by the plaintiff to be true, and that in a case like this the tribunal to try all issues of fact was a jury, and that the sufficiency of the justifi cation depended upon the extent of misconduct, but that there was no fixed rule of law defining the degree of misconduct which would justify a dismissal. There might of course be such mis conduct in a servant that would not justify a de termination of the contract of service by one of the parties against the wish of the other. When an alleged misconduct consisted of drunkenness, there must necessarily be difficulty in determining the extent or conditions of intoxication which