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they issue diplomas to those taking a full course; that the degree of ophthalmology is conferred; that he received a regular course diploma, and graduated in ophthalmology, the fitting of glasses; that the degree of doctor of ophthalmology was conferred upon him, and that he had a diploma, which he produced; that no disease was treated by him by the use of medicine; that they were not instructed to treat any disease by the use of medicine in that college; that the course of education in that college was purely nonmedical; and that they learned to correct errors in refraction by test. On crossexamination he stated that he took the course of a graduate, a two-weeks course, a little over two weeks. He also testified that he studied anatomy and physiology of the eye for about two years; that previous to going to the school he studied for about a year in Iowa; that he was in a doctor's office, where he made a specialty of refraction. Chapter 176, p. 202, of the Laws of 1903, provides for creating a board of medical examiners, defines their duties, empowers them to grant licenses to qualified applicants, and prescribes penalties for practising without such a license. Section 21 provides as follows: "When a person shall append or prefix the letters 'M. B.', or 'M. D.', or the title 'Dr.' or 'Doctor' or any other sign or appellation in a medical sense to his or her name or shall profess publicly to be a physician or surgeon, or who shall recommend, prescribe, or direct for the use of any person any drug, medicine, apparatus, or other agency for the cure, relief, or palliation of any ailment or disease of the mind or body, or for the cure or relief of any wound, fracture, or bodily injury, or deformiity after having received or with the intent of receiving therefor, either directly or indirectly, any bonus, gift, or compensation, [he or she] shall be regarded as practising within the meaning of this act." It will be observed that it is provided by the above section that, "when a person shall append or prefix the letters 'M. B.', or 'M. D., or the title 'Dr.' or 'Doctor' or any other sign or ap

PEOPLE of the State of Michigan

v.

Monroe J. MCPHEE, Exceptant.

MICHIGAN SUPREME COURT.

(..... Mich.........)

The fact that each member is entitled to trade out the amount he has paid in whenever he chooses to withdraw

NOTE. As to what constitutes a lottery, see also. in this series, People v. Elliott, 3 L. R. A. 403, and note; Yellowstone Kit v. State,

pellation in a medical sense to his or her name, or shall profess publicly to be a physician or surgeon, [he or she] shall be regarded as practising within the meaning of this act." The evidence seems to be uncontradicted that the plaintiff in error did, upon a sign in front of his office. and in the notice published, prefix to his name the letters "Dr.," and it is quite clear from the evidence that they were used in a medical sense, and we are of the opinion that the jury were fully justified in so regarding them.

The legislature evidently intended, in enacting the law, to prevent persons not properly educated in the science of medicine from assuming to act as a physician, and to protect the public, and it has deemed it proper that every person assuming to act as a physician or surgeon should be properly licensed. In carrying into effect this law, it was competent for the legislature to define, as it has assumed to do in § 21, what evidence shall be deemed sufficient to constitute a practitioner within the meaning of the act. In view of the testimony of the physicians as to the proper definition of ophthalmology, it is quite clear from the advertisement of the plaintiff in error that he had assumed to hold himself out as a physician within the meaning of the act. And it is not only clear from the language of the advertisement itself, which would be generally understood as an assumption on his part of being a regular physician, or at least a specialist in that branch of medicine treating of ophthalmology, but the legislature has declared that prefixing the term "Dr.," to his name shali be so regarded. The law should not be so construed as to deprive the people of the benefits intended by the act, but such a construction should be given it as to carry into effect the evident intention of the legis lature. See 22 Am. & Eng. Enc. Law, p. 786, and cases there cited.

Finding no error in the judgment of the Circuit Court, the same is affirmed.

from the club does not prevent a suit club, which is a scheme by which a certain number of persons pay a small sum per week, and choose by lot each week one of the number who shall receive a suit of clothes worth much more than such weekly payment, upon receipt of which he ceases to be a member of the club, from being a lottery.

(April 21, 1905.)

7 L. R. A. 599, and note; Ballock v. State, 8 L. R. A. 671; State v. Boneil, 10 L. R. A. 60; State ex rel. Kellogg v. Kansas Mercantile

E

XCEPTIONS by defendant before sentence to a ruling of the Circuit Court for Chippewa County directing a verdict of guilty in a prosecution for conducting a lottery. Affirmed.

The facts are stated in the opinion, Mr. Clyde Hayden, with Messrs. Holden & Holden, for exceptant.

Mr. John P. Conrick, for the People: A lottery is "a scheme by which a result is reached by some action or means taken, and in which result man's choice or will has no part, nor can human reason, foresight, sagacity, or design, enable him to know or determine such result until the same has been accomplished."

Barclay v. Pearson [1893] 2 Ch. 154; Caminada v. Hulton, 17 Cox, C. C. 307; Stoddart v. Sagar [1895] 2 Q. B. 474; People ex rel. Lawrence v. Fallon, 152 N. Y. 12, 37 L. R. A. 227, 57 Am. St. Rep. 492, 46 N. E. 296; Re Dwyer, 14 Misc. 204, 35 N. Y. Supp. 884; Reg. v. Dodds, 4 Ont. Rep. 390; Reg. v. Jamieson, 7 Ont. Rep. 149; Hudelson v. State, 94 Ind. 426, 48 Am. Rep. 171.

Gen. v. Interstate Sav. Invest. Co. 64 Ohio St. 283, 52 L. R. A. 530, 83 Am. St. Rep. 754, 60 N. E. 220; United States v. McDonald, 59 Fed. 563, 12 C. C. A. 339, 24 U. S. App. 25, 63 Fed. 426; People v. Elliott, 74 Mich. 264, 3 L. R. A. 403, 16 Am. St. Rep. 640, 41 N. W. 916; United States v. Fulkerson, 74 Fed. 619; Re National Indemnity & E. Co. 142 Pa. 450, 21 Atl. 879; State v. New Orleans Debenture Redemption Co. 51 La. Ann. 1827, 26 So. 586; McLaughlin v. National Mut. Bond & Invest. Co. 64 Fed. 908; Peltz v. Supreme Chamber, O. of F. U. (N. J. Eq.) 19 Atl. 668.

People v. Elliot, 74 Mich. 264, 3 L. R. A. the court: 403, 16 Am. St. Rep. 640, 41 N. W. 916.

Where skill or judgment is exercised in determining the result there is no lottery, but where pure chance determines we have one of the elements of a lottery.

A lottery is a scheme for distributing prizes by lot or by chance.

19 Am. & Eng. Enc. Law, 2d ed. p. 588; State v. Clarke, 33 N. H. 329, 66 Am. Dec. 723; Wilkinson v. Gill, 74 N. Y. 66, 30 Am. Rep. 264; People v. Noelke, 94 N. Y. 137, 46 Am. Rep. 128; State v. Willis, 78 Me. 73, 57 Am. Rep. 784, 2 Atl. 848; Com. v. Sullivan, 146 Mass. 142, 15 N. E. 491; Equitable Loan & Security Co. v. Waring, 117 Ga. 599, 62 L. R. A. 97, 97 Am. St. Rep. 177, 44 S. E. 320; United States v. Wallis, 58 Fed. 942; United States v. McDonald, 59 Fed. 563; United States v. Fulkerson, 74 Fed. 627.

A scheme where inequality in payment or distribution is to result from chance is a lottery.

Dunn v. People. 40 Ill. 465; Meyer v. State, 112 Ga. 20, 51 L. R. A. 496, 81 Am. St. Rep. 17. 37 S. E. 96; United States v. Wallis, 58 Fed. 942: Ballock v. State, 73 Md. 1, 8 L. R. A. 671, 25 Am. St. Rep. 559, 20 Atl. 184; United States v. Politzer, 59 Fed. 273; Horner v. United States, 147 U. S. 449, 37 L. ed. 237, 13 Sup. Ct. Rep. 409; Reg. v. Harris, 10 Cox, C. C. 352; Sykes v. Beadon, L. R. 11 Ch. Div. 170; State ex rel. Atty.

Asso. 11 L. R. A. 430; Long v. State, 12 L. R. A. 89, and note. 12 L. R. A. 425; Thornhill v. O'Rear, 31 L. R. A. 792; Lynch v. Rosenthal, 31 L. R. A. 835; People er rel. Lawrence v. Fallon, 37 L. R. A. 227; Meyer v. State, 51 L. R. A. 496; State er rel. Sheets v. Interstate

Ostrander, J., delivered the opinion of

At the conclusion of the testim in this case, counsel on both sides asserted that there was no issue of fact to be determined, and requested the court to direct a verdict either of conviction or acquittal, according to his opinion of the law. The court instructed the jury that, under the testimony, they should render, and they did render, a verdict of guilty as charged, and the case comes here upon exceptions before sentence.

Respondent is charged in the information with setting up and promoting a lottery for merchandise, and that he did dispose of merchandise by way of lottery and gift enterprise, contrary to the form of the statute. He is a merchant tailor doing business at the city, of Sault Ste. Marie, and, in connection with, or as a part of, the regular business, he conducted what is known as a "tailor suit club," or "suit club." This suit club had 30 members, who each paid to respondent $1 a week. Respondent gave receipts for the money, dated, and in the following form: "$1.00. Received of one dollar, club dues. M. J. McPhee." To each members a number was allotted by the members themselves. These were put in a cigar box, thoroughly mixed and shaken, and a drawing was made from this box by one of the members according to some plan agreed upon among themselves. The drawings took place each Saturday night, and some member, as a result of the drawing. received for whatever he had paid in a suit of clothes or an overcoat valued at and worth $20, made to order by respondent. If a member won, he drew out of the club, and a new member was taken in. It might occur that one who had paid in but $1 would get the suit of clothes or overcoat, and it might occur that a member would pay $20

Sav. Invest. Co. 52 L. R. A. 530; State ex rel. Prout v. Nebraska Home Co. 60 L. R. A. 448: Equitable Loan & Security Co. v. Waring, 62 L. R. A. 93: Winston v. Beeson, 65 L. R. A. 167; People ex rel. Ellison v. Lavin, 66 L. R. A. 601.

chased of respondent. That is to say, if a member had paid $1 a week for twenty weeks, he had a credit of $20. If he had paid but six weeks, he had a credit of $6, which he could use with the respondent in the purchase of garments.

and participate in 20 drawings without securing either as a result of the drawing. It was a part of the agreement, however, and was the practice, to permit a member of the club to withdraw at any time, and upon such withdrawal he was entitled to receive from respondent clothing of the value of the money he had contributed to the club, or let the sum of money he had paid in stand as a credit and as part payment for clothing pur-phers, some by judges, and particularly to one given in the third edition of Bishop on Statutory Crimes, which counsel say supports their contention, and which is: "A lottery may be defined to be any scheme whereby one, on paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, or nothing, as some formula of chance may determine." We do not understand how this definition aids respondent. It is well known that in most lottery schemes some of those who pay get nothing. It is difficult to see how a definition intended to be general, and to describe the results to participants in a lottery, could well omit language indicating that the result might be nothing. But the learned author does not mean that, to be classed as a lottery, the scheme must have blanks. This is evidenced by the context and by cases cited. § 952. In another place the same author says that the word has not yet been defined in a manner which is both inclusive and exclusive. Our statute does not define the word. Nor need we attempt a definition. Like similar statutes in other of the states, our own has a general purpose, and this purpose is not alone evidenced by the language of the statute. In a large majority of the states, including Michigan, there is a constitutional limitation upon the power of the legislature to authorize lotteries. Few definitions are directly or indirectly attempted. These various constitutional inhibitions in effect recognize and affirm the rule stated in Stone v. Mississippi, 101 U. S. 814, 25 L. ed. 1079, that lotteries are not in the legal acceptation of the term mala in se, but may properly be made mala prohibita. Such a provision has been held to be so far self-executing as to warrant and require the court, in the absence of penal or other statutes upon the subject, to declare the charter of a private corporation, whose scheme and plan of business was within the constitutional inhibition, to be forfeited. State ex rel. Kellogg v. Kansas Mercantile Asso. 45 Kan. 351, 11 L. R. A. 430, 23 Am. St. Rep. 727, 25 Pac. 984. In the case mentioned it was said that the word

state prison not more than three years, or by imprisonment in the county jail not more than one year.

Counsel for respondent say that the only question involved is whether, upon this state of facts, a verdict of guilty was properly directed, or, to put it in another way, whether respondent was conducting a lottery or gift enterprise, within the meaning of our statute. The statute in question is § 11,344 of the Compiled Laws of 1897, and is the first section of chapter 316, entitled, "Of Offenses against the Public Policy." It provides that "every person who shall set up or promote, within this state, any lottery or gift enterprise for money, or shall dispose of any property, real or personal, goods, chattels, or merchandise or valuable thing, by the way of lottery or gift enterprise, and every person who shall aid, either by printing or writing, or shall in any way be concerned in the setting up, managing, or draw ing of any such lottery or gift enterprise, or who shall in any house, shop, or building owned or occupied by him or under his control, knowingly permit the setting up, managing, or drawing of any such lottery or gift enterprise, or the sale of any lottery ticket or share of a ticket, or any other writing, certificate, bill, goods, chattels, or merchandise, token or other device purporting or intended to entitle the holder or bearer or other person to any prize or gift, or to any share of, or interest in, any prize or gift, to be drawn in any such lottery or gift enterprise, or who shall knowingly suffer money or other property to be raffled for in such house, shop, or building, or to be there won by throwing or using dice, or by any other game or course of chance, shall for every such offense be punished by a fine not exceeding $2,000, or by imprisonment in the county jail not more than one year." A subsequent section of the same chapter provides that if any person shall, after being convicted of any offense mentioned in this section, commit the like offense, or any other of the offenses therein mentioned, he shall, in addition to the fine provided therefor, be further punished by imprisonment in the

The single contention of counsel is that, inasmuch as there was no chance for a member of the club to sustain a loss, respondent was not conducting a lottery. We have been referred to many definitions of the word "lottery," some of them made by lexicogra

"lottery" must be construed in the popular sense, with the view of remedying the mischief intended to be prevented, and to suppress all evasions for the continuance of the

the Minnesota statute differs from ours, and
that the court had before it what we have

when

·

mischief. The word "lottery" is generic. | fle," or "gift enterprise," or by any other
No sooner is it defined by a court than in- name. The court held the term "lottery"
genuity evolves some scheme within the mis- to have no technical meaning; but under the
chief discussed, but not quite within the let statute it was to be construed in the popu-
ter of the definition given. This is made lar sense, and with the view to remedy the
very apparent in the large number of cases mischief intended to be prevented. "The
which we have examined in which various statute is intended to reach all devices which
methods of distributing money or goods by are in the nature of lotteries, in whatever
chance are examined and discussed. It is form presented, and the courts will tolerate
said by counsel for respondent in their brief no evasions for the continuance of the mis-
that this court, in People v. Elliott, 74 Mich. chief. Of the fact that the holder had the
264, 3 L. R. A. 403, 16 Am. St. Rep. 640, option to receive in goods the amount he had
41 N. W. 916, laid down a definition which paid, it was said that it would probably
did not include a possibility of loss. In that operate only as an additional incentive to
case, as in others, the language of the opin- aid the lottery scheme. "It does not take
ion is addressed to the facts before the the scheme out of the statute. They were
court, and the contentions presented for de- not bought in order to get their face value
cision. We approve the language used in
in goods. The vicious element still inheres
the opinion in Ballock v. State, 73 Md. 1, 8 in the transaction. . . . The sale of a
L. R. A. 671, 25 Am. St. Rep. 559, 20 Atl.
ticket gave the purchaser the chance to ob-
184, where it is said: "Our statute does
not justify a court
in deciding a
tain something more than he paid for, and
thing is not a lottery simply because there that became an extra inducement for the
can be no loss, when there may be very large purchase." Counsel for respondent say that
contingent gains, or because it lacks some
element of a lottery according to some par-
ticular dictionary's definition,
it has all the other elements, with all the
pernicious tendencies which the state is
seeking to prevent." In that case it was
contended that no blanks were drawn, and
the scheme considered provided for the ulti-
mate return of the entire investment, with
interest; the time of such return to certain
holders of the bonds depending upon chance,
and the inducement for investment being the
possibility of getting a bonus, also de-
termined by chance. See also State ex rel.
Atty. Gen. v. Interstate Sav. Invest. Co. 64
Ohio St. 283, 52 L. R. A. 530, 83 Am. St.
Rep. 754, 60 N. E. 220; Den ex dem. Wooden
v. Shotwell, 23 N. J. L. 465; United States
v. Olney, 1 Abb. (U. S.) 275, Fed. Cas. No.
15,918; State v. Mumford, 73 Mo. 647, 39
Am. Rep. 532; MacDonald v. United States,
12 C. C. A. 339, 24 U. S. App. 25, 63 Fed.
426; Reg. v. Harris, 10 Cox, C. C. 352. For
a considerable collection of cases and gen-
eral discussion, see Equitable Loan & Se-
curity Co. v. Waring, 117 Ga. 599, 62 L. R.
A. 93, 97 Am. St. Rep. 177, 44 S. E. 320.
The case of State v. Moren, 48 Minn. 555,
51 N. W. 618, is in its essential facts pre-
cisely like the case at bar. The only ques-
tion considered by the court was whether the
evidence was sufficient to bring the case
within the condemnation of the statute.
The Minnesota statute defines a lottery to be
a scheme for the distribution of property by
chance among persons who have paid, or
agreed to pay, a valuable consideration for
the chance, whether called a "lottery," "raf-

not, a statutory definition of the word
"lottery." The definition, however, is very
broad, and cannot be said to contain any
language which would make the decision on
that account inapplicable here. Upon the
facts and the construction placed by the
court upon the statute, the case is decisive.

It cannot be denied that the respondent
sought to, and presumably did, increase his
business by a device or scheme, the feature
of which, so far as securing patrons and cus-
tomers was concerned, was the chance to
obtain $20 worth of clothing for some sum of
money less than $20. It was calculated to,
and did, appeal to the gambling propensity
of men, was within the mischief at which the
legislation is aimed, was within the terms of
the statute, and, in our opinion, a disposi-
tion of property by way of lottery. We are
referred by counsel to no case which sustains
their contention.

We have not lost sight of the fact that the charters of various cities permit ordinances forbidding lotteries and punishing promoters of them, treating them as minor offenders, nor that the statute before us warrants the imposition of a considerable penalty, and makes a second offense a felony. The statute is general, as it must be, and applies to big and to little lotteries. The extent of the mischief done by respondent is not a consideration which ought to affect our determination.

We are of opinion that the court below was right, and the conviction is therefore affirmed.

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MINNESOTA SUPREME COURT.

BIBB BROOM CORN COMPANY, Respt.,

v.

ATCHISON, TOPEKA, & SANTA FÉ
RAILWAY COMPANY, Appt.

Jones v. Minneapolis & St. L. R. Co. 91 Minn. 229, 103 Am. St. Rep. 507, 97 N. W. 893.

The test of liability is not whether the company used such particular foresight as is evident, after the accident happened, might have averted it had the danger been

*1. It is the duty of a common carrier known, but whether it used that degree of to whom goods are delivered for transportation to forward them promptly, and without unreasonable delay, to their

destination.

( ... ... ... ... ... ... . . Minn...... .)

.....

....

2. If he fails to do so, and negligently and carelessly delays the shipment, and the goods are overtaken in transit, and damaged by an act of God which would not have caused the damage had there been no delay, he is liable, even though the act of God could not reasonably have been anticipated. The negligence and unreasonable delay is such a proximate or concurring cause as renders a

carrier liable.

the Municipal Court of Minneapolis denying an alternative motion for judgment non obstante veredicto, or for a new trial after verdict in plaintiff's favor, in an action brought to recover damages to property while in defendant's possession for transportation. Affirmed.

The facts are stated in the opinion.

Messrs. Belden, Hawley, & Jamison, for appellant:

Concurring negligence which, when combined with the act of God, is actionable, must be such as is in itself a real, producing cause of the injury.

Baltimore & O. R. Co. v. Sulphur Spring Independent School District, 96 Pa. 65, 42 Am. Rep. 531.

The character and magnitude of this flood are conceded to have been unprecedented, and such as have been denominated an act of God, properly so called.

Libby v. Maine C. R. Co. 85 Me. 34, 20 L. R. A. 812; 26 Atl. 943; American Exp. Co.. v. Smith, 33 Ohio St. 511, 31 Am. Rep. 561.

The negligent delay of defendant in forwarding plaintiff's goods, but for which such goods would not have been damaged, does not, as a matter of law, create any liability on the part of the defendant.

3. This rule applies whether the goods in their nature are perishable or nonperishable.

(February 24, 1905.)

Gilson v. Delaware & H. Canal Co. 65 Vt. 213, 36 Am. .St. Rep. 838, 26 Atl. 70; Norris v. Savannah, F. & W. R. Co. 23 Fla. 182,

defendant from an order of 11 Am. St. Rep. 362, 1 So. St.

I. M. & S. R. Co. v. Commercial Union Ins. Co. 139 U. S. 223, 35 L. ed. 154, 11 Sup. Ct. Rep. 554; Hoadley v. Northern Transp. Co. 115 Mass. 304, 15 Am. Rep. 106; McClary v. Sioux City & P. R. Co. 3 Neb. 44, 19 Am. Rep. 631; Daniels v. Ballantine, 23 Ohio St. 532, 13 Am. Rep. 264; Dubuque Wood & Coal Asso. v. Dubuque, 30 Iowa, 176; International & G. N. R. Co. v. Bergman (Tex. Civ. App.) 64 S. W. 999; Lamont v. Nashville & C. R. Co. 9 Heisk. 58; Clark v. Pacific R. Co. 39 Mo. 184, 90 Am. Dec. 458; McVeagh v. Atchison, T. & S. F. R. Co. 3 N. M. 327, 5 Pac. 457; Reid v. Evansville & T. H. R. Co. 10 Ind. App. 385, 53 Am. St. Rep. 391, 35 N. E. 703; Davis v. Central Vermont R. Co. 66 Vt. 290, 44 Am. St. Rep. 852, 29 Atl. 313; Gleason v. Virginia Midland R. Co. 5 Mackey, 356; Michigan C. R. Co. v. Burrows, 33 Mich. 6.

Mr. Arthur W. Selover, for respondent: This flood, or one substantially as great, ought to have been anticipated by defendant in a reasonable view of all the conditions.

Beede v. Wisconsin C. R. Co. 90 Minn. 36, 101 Am. St. Rep. 390, 95 N. W. 454; Fox v. Boston & M. R. Co. 148 Mass. 220, 1 L. R. A. 702, 19 N. E. 222; Smith v. Western R. Co. 91 Ala. 455, 11 L. R. A. 619, 24 Am. St. Rep. 929, 8 So. 754; Chicago, B. & Q. R. Co. v. Manning, 23 Neb. 552, 37 N. W. 462; Lamont v. Nashville & C. R. Co. 9 Heisk. 58; Adams Exp. Co. v. Jackson, 92 Tenn. 326, 21 S. W. 666.

Davis v. Wabash, St. L. & P. R. Co. 89 Mo. 340, 1 S. W. 327; Libby v. Maine R. Co. 85 Me. 34, 20 L. R. A. 812, 26 Atl. 943; Blythe v. Denver & R. G. R. Co. 15 Colo. 333, 11 L. R. A. 615, 22 Am. St. Rep. 403, 25 Pac. 702; People v. Utica Cement Co. 22 Ill. App. 159; Smyrl v. Niolon, 2 Bail. L. 421, 23 Am. Dec. 146; Faulkner v. Wright, Rice, L. 107; Pearce v. The Thomas Newton, 41 Fed. 106;

Headnotes by BROWN, J.

NOTE. As to liability of carrier for loss caused by its negligence combined with an act of God, see also cases in note to Blythe v. Denver & R. G. R. Co. 11 L. R. A., on page 616; Lang v. Pennsylvania R. Co. 20 L. R. A. 360; Wald v. Pittsburg, C. C. & St. L. R. Co. 35

L. R. A. 356.

care and prudence which a very cautious and prudent person would have used, under the apparent circumstances of the case, to prevent the accident, without reasonable knowledge that it was likely to occur.

A common carrier is bound to take notice of the signs of approaching danger, and, if they are such as reasonably to awaken apprehension of danger, is bound to use all

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