coming of a train. The case is somewhat similar in principle to Richmond v. Railway Co., 87 Mich. 374. In that case it was said substantially that it was almost absolutely certain, from plaintiff's own showing, that he did not look south when within 20 feet of the tracks, and that whether he was negligent depended in a great measure upon whether or not he had a right to rely, under the circumstances, upon the absence of the flagman, and the lack of any signal of danger from him. The cases upon that question are collected, and upon the whole case it was held that the circumstances were such that it became a question for the jury whether the plaintiff was guilty of contributory negligence. So we think in this case that, under proper instructions from the court, that question should go to the jury, in connection with plaintiff's third request, which should have been given. The main questions raised by briefs of counsel have been fully discussed, so that upon a new trial the rights of the parties may be fairly submitted. The judgment must be reversed, and a new trial ordered. MCGRATH, C. J., MONTGOMERY and HOOKER, JJ., concurred with LONG, J. GRANT, J. I concur in the opinion of my Brother LONG, except in what he says about the failure to ring the electric bell stationed at the crossing. This bell is not required by the statute, and the failure to ring it is not negligence per se. There was evidence that the apparatus by which it is rung was out of order. Several of the witnesses, however, for the plaintiff, testified that it did ring, but not so loud as usual. The fact that it did not ring at all, or as loud as usual, could not, in my judgment, operate as an excuse for Mr. Tobias. He was bound to use his senses of hearing and seeing to the same degree as though the bell had not been there. The highway was on the outskirts of the city. Mr. Tobias lived near the crossing, and was familiar with the danger. He knew that trains were liable to pass at any time, and is chargeable: with knowledge that this was the time for the approach. of a regular passenger train. To hold that such an apparatus, not required either by the statute or by the common law, but placed by the company in a laudable desire to furnish every notice possible of an approaching train, may operate to excuse a traveler from looking and listening for an approaching train, is a doctrine which I do not think is sanctioned by reason or authority. Every traveler knows that a train cannot stop instantly, and that if he drives his team upon the track he endangers, not only his own person and property, but the lives and property of the employés and passengers upon the train, and, as well, the property of the company. If it was so dark or foggy or misty that he could not see the light of the approaching train, it was clearly his duty to stop and listen. Had he done so, the conclusion is irresistible that he would have heard the noise of the train. It is a matter of common knowledge that electrical bells are liable to be out of order. In order to excuse the failure of Mr. Tobias to look, or to stop and listen, if he could not see, the jury would be compelled to find that he had the right to rely upon the ringing of the electrical bell as notice of the approaching train, and to drive on without other precaution. I think the request was properly refused. I think the court should have directed a verdict for the defendant, but he left the case to the jury with very careful instructions on both the negligence of the defendant and the negligence of the deceased, instructing them to consider all the facts and circumstances in the case bearing upon both. The jury found a verdict for the defendant. The judgment should be affirmed. 103 344 f 120 342 GEORGE L. WALKER V. THERON F. GIDDINGS, COMMIS- Benefit societies-Endowment insurance-Authority to do business. 1. Insurance payable on the expiration of a fixed period comes within the definition of endowment insurance. 2. A beneficiary society incorporated under Act No. 104, Laws of 1869 (How. Stat. chap. 118), which provides only for the payment by the society of a certain sum in case of death, and for periodical payments in case of the sickness or other disability of the member, is not authorized to conduct an endowment insurance business. 8. The words "such business," used in section 3 of Act No. 119, Laws of 1893, entitled "An act to define what shall constitute fraternal beneficiary societies,” etc., and which provides that all associations coming within the description as set forth in section 1 of the act, organized under the laws of this or any other state, and now doing business in this State, may continue "such business," provided they comply with the provisions of the act regulating annual reports, etc., mean such business as was authorized under the act under which the association was incorporated. Mandamus. Argued December 18, 1894. Denied December 22, 1894. Relator applied for mandamus to compel respondent to receive and file the reports of a fraternal beneficiary association, and to issue the statutory certificate authorizing it to do business. The facts are stated in the opinion. D. F. Glidden, for relator. A. A. Ellis, Attorney General, for respondent. LONG, J. Relator, on behalf of the American Monitor, a fraternal beneficiary organization, filed his petition for mandamus to compel the respondent to receive and file the reports of said association according to the provisions of Act No. 119, Laws of 1893, and to issue his certificate of authority to said association to carry on and transact the business specified in the several sections of its articles of association, constitution, and by-laws. The petition sets forth substantially that said association was incorporated on August 9, 1893, and is a corporation. organized and existing under the laws of this State as a fraternal beneficiary organization, operating through a lodge system, and paying to its members or their beneficiaries. benefits upon death, disability, or old age; that by its constitution and by-laws it is authorized to issue to its members certificates in sums of $250 each, payable to such members at a specified time, or upon total or partial disability, or, upon death of such members, to the beneficiaries of such members. This association was incorporated under Act No. 104, Laws of 1869, being chapter 118, How. Stat., and on the date of its organization filed its articles of association with the Secretary of State. The Commissioner of Insurance refused to receive and file the reports or to issue the certificate, for the reasons: 1. That by the articles of association, constitution, and by-laws of the American Monitor it is proposed to carry on what is commonly known as "endowment insurance,' or the paying of a specified sum upon the arrival of a certain stated time. 2. That the law under which said association was incorporated has been repealed, save as to corporations existing at the time the act of 1893 took effect, which was August 27, 1893; and, as said association has never reincorporated under the act of 1893, but merely continues its business by virtue of section 3 of that act, it has no authority to do any other business than that specified in Act No. 104, Laws of 1869. Section 1 of the act of 1869, under which the association was incorporated, provides: "That any number of persons, not less than five, may become a body corporate and politic for the purpose of securing to the families or heirs of any member, upon his death, a certain sum of money, to be paid by such corporation either out of its fund or by an assessment made upon the members of such corporation, or upon the members of the class in such corporation to which such deceased member belonged, or for the purpose of securing in the same manner a certain sum of money, weekly or monthly, to any member disabled from attending to his ordinary duties by sickness or other disability." Section 5 of article 1 of the constitution of the association provides: "The supreme directory shall have the power, through its board of managers, to issue endowment or life certificates of not exceeding $250 each, payable in 100 months, or upon total disability or death; or, when there shall be a sufficient sum in the maturity fund, the lowest serial number of the endowment certificates may be retired under the direction of the board of managers in accordance with the terms of the certificate." The act under which the association was incorporated, it will be noticed, provides only for payment in case of death, or for payments in case a member is disabled by sickness or other disability; while the constitution of this association not only provides for payment in case of death and disability, but also endowments payable at the end of 100 months. It is too well settled to need the citation of authority that corporations can exercise only such powers as are expressly or by implication granted to them. Bac. Ben. Soc. & Life Ins. § 47; Ang. & A. Corp. § 256. Subdivision 3 of article 2 of the constitution of the association, relative to the objects of the order, provides for the naming of beneficiaries, and the receipt of benefits by such members or the beneficiaries named, in a sum not exceeding $3,000 in all in the endowment and life classes. The act of 1869 was amended by Act No. 192, Laws of 1883, but the amendment in no manner enlarged the privileges |