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with her and associate with her just as well and one for "loss of consortium of Louise now as before, can you not?

Blair, as wife, heretofore incurred and to be hereafter incurred $2,000."

A. Sometimes, not all the time. The woman is in pain all the time, and when a These, with a claim of $2,500 for loss of person is in pain they don't feel much like her earning capacity and services as wife, talking and laughing and joking, nor any-make up the $5,000 demand, to recover thing of that kind. They feel more like which the suit is brought. going and hiding themselves sometimes. Q. Then does it simmer down to this, that she is not at times in as cheerful a mood or condition now as she used to be? A. No, sir.

Q. Is that what you complain of? A. Yes, sir.

The testimony of the plaintiff tended to prove that as she stepped into the elevator she fell, striking with the lower part of her abdomen a stool which was in the elevator, causing a displacement of the uterus and a condition which developed appendicitis. A surgical operation was resorted to some

Q. Is there anything else in that connec- two and one-half months after the injury tion that you complain of?

A. No, not in particular. The jury was instructed: "By consortium as used by me is meant the right of plaintiff as husband to the fellowship of his wife, to her company, co-operation, and aid in every marriage relationship that ordinarily arises and exists as between husband and wife, including the care of his home, attention to household affairs, and such other reasonable discharge of ordinary domestic duties as she was accustomed to render him as his wife, and as is usual as between husband and wife situate as they

were."

Also, in stating for what injuries plaintiff's damages should be determined: "Third, for any and all loss sustained by plaintiff, if any, by the impairment of her ability and power to render such domestic services and perform such work as she, as his wife, was accustomed to render to plaintiff in his household prior to such injuries, including such loss of consortium as I have explained, and such of said serv

ices as she would have continued to render but for these injuries, and in determining the amount which you will allow plaintiff, if any, under this third subdivision you will deduct therefrom such sum as you may allow the plaintiff, if any, for any and all expenditures for help in his home for which you may have made him an allowance under

the second subdivision last above."

The contributory negligence of plaintiff's wife is established, it is claimed, as matter of law, for which reason the court should have directed a verdict, and, failing this, should have granted a new trial. The results of the injury to plaintiff's wife claimed by the plaintiff are not, it is said, made out; they are plainly conjectural.

In plaintiff's bill of the particulars of his damages is an item for "expenses in connection with medical and surgical care and attention, medicine, care, d nursing of Louise Blair, wife of plaintiff, heretofore incurred and to be hereafter incurred $500,"

was received, the cost of which is an item of plaintiff's demand. Whether this operation was made necessary by the injuries received by plaintiff's wife in defendant's store, or whether her condition, relieved or attempted to be relieved by the surgical operation, was of long standing and due a subject which reto other causes, was ceived considerable attention at the trial. Upon this subject the defendant preferred the following request, which was refused: "There is no evidence tending to show there was anything wrong with any of Mrs. uterus, and there is no evidence tending to Blair's organs excepting the appendix and show that her appendix and uterus were injured by the fall which it is claimed in this and there is no evidence tending to show case she sustained in defendant's elevator, that the surgical operation performed by Dr. Ballard became necessary because of any injury sustained by her in the accident complained of, and therefore the plaintiff is not entitled to recover, and I charge you to render a verdict in favor of

the defendant."

Defendant offered in evidence the files and

records in the suit of Louise Blair (plainshe recovered $1,000 damages for the injury tiff's wife) against this defendant, in which in question here, which judgment was paid. They show that in They were excluded. that suit she alleged as damages expenses for medical and surgical care, medicine, and nursing already incurred and to be incurred, and loss of earning capacity, and large sums which she would have been able the husband in a case of this nature to reto earn as housekeeper, etc. The right of cover damages for the loss of the services of his wife was and is questioned.

Messrs. Stoddard & McMillan, for appellant:

The verdict of a jury should not rest upon conjecture or guess work. The negligence alleged, and the injuries for which damages are claimed, must bear the relation of cause and effect; and without proof

that the injury is the rational and proxi- | 350; Fuller v. Naugatuck R. Co. 21 Conn. mate result of the negligence alleged, there 557, 2 Am. Neg. Cas. 266; McKinney v. can be no recovery.

Smith v. Hockenberry, 138 Mich. 129, 101 N. W. 207; Powers v. Pere Marquette R. Co. 143 Mich. 379, 106 N. W. 1117; Mitchell v. Chicago & G. T. R. Co. 51 Mich. 236, 38 Am. Rep. 566, 16 N. W. 388, 4 Am. Neg. Cas. 37; Manning v. Chicago & W. M. R. Co. 105 Mich. 260, 63 N. W. 312; Perry v. Michigan C. R. Co. 108 Mich. 130, 65 N. W. 608; Fuller v. Ann Arbor R. Co. 141 Mich. 66, 104 N. W. 414, 18 Am. Neg. Rep. 489; Sheon v. Kerr-Murray Mfg. Co. 146 Mich. 99, 109 N. W. 40; Brininstool v. Michigan United R. Co. 157 Mich. 172, 121 N. W. 728; Scott v. Boyne City, G. & A. R. Co. 169 Mich. 265, 135 N. W. 110; McCoy v. Michigan Screw Co. 180 Mich. 454, L.R.A. -, 147 N. W. 572, 5 N. C. C. A. 455.

Plaintiff cannot recover damages for loss of consortium.

Marri v. Stamford Street R. Co. 84 Conn. 9, 33 L.R.A.(N.S.) 1042, 78 Atl. 582, Ann. Cas. 1912B, 1120; Feneff v. New York C. & H. R. R. Co. 203 Mass. 278, 24 L.R.A. (N.S.) 1024, 133 Am. St. Rep. 291, 89 N. E. 436; Gambino v. Manufacturers' Coal & Coke Co. 175 Mo. App. 653, 158 S. W. 77; Bolger v. Boston Elev. R. Co. 205 Mass. 420, 91 N. E. 389; Brown v. Kistleman, 177 Ind. 692, 40 L.R.A. (N.S.) 236, 98 N. E. 631; Goldman v. Cohen, 30 Misc. 336, 63 N. Y. Supp. 459; 21 Cyc. 1617, 1621, 1626; Kelley v. New York, N. H. & H. R. Co. 168 Mass. 308, 38 L.R.A. 631, 60 Am. St. Rep. 397, 46 N. E. 1063; Bowdle v. Detroit Street R. Co. 103 Mich. 272, 50 Am. St. Rep. 366, 61 N. W. 523, 4 Am. Neg. Cas. 180; Gorton v. Harmon, 152 Mich. 473, 116 N. W. 443, 15 Ann. Cas. 461; Nelson v. Lake Shore & M. S. R. Co. 104 Mich. 582, 62 N. W. 993; Baldwin, Personal Injuries, § 428.

Messrs. De Foe, Hall, & Converse, for appellee:

Plaintiff was entitled to recover damages for loss of consortium.

Baker v. Bolton (1808), 1 Campb. 493, 10 Revised Rep. 734; Osborn v. Gillett, L. R. 8 Exch. 88, 42 L. J. Exch. N. S. 53; Carey v. Berkshire R. Co. 1 Cush. 475, 48 Am. Dec. 616; Hyatt v. Adams, 16 Mich. 189; Eden v. Lexington & F. R. Co. 14 B. Mon. 204; Kearney v. Boston & W. R. Corp. 9 Cush. 108; Whitford v. Panama R. Co. 23 N. Y. 465; Berger v. Jacobs, 21 Mich. 215; Baldwin, Personal Injuries, ¶ 425; Gregory v. Oakland Motor Car Co. Mich., 147 N. W. 614; Skoglund v. Minneapolis Street R. Co. 45 Minn. 330, 11 L.R.A. 222, 22 Am. St. Rep. 733, 47 N. W. 1071; Blair v. Chicago & A. R. Co. 89 Mo. 383, 1 S. W.

-

Western Stage Co. 4 Iowa, 420; Cregin v. Brooklyn Crosstown R. Co. 75 N. Y. 192, 31 Am. Rep. 459; McDonald v. Chicago & N. W. R. Co. 26 Iowa, 124, 96 Am. Dec. 114, 3 Am. Neg. Cas. 307; Hopkins v. Atlantic & St. L. R. Co. 36 N. H. 9, 72 Am. Dec. 287; 2 Thomp. Neg. ¶ 15, p. 1240; Cooley, Torts, 226, 227; Kelley v. New York, N. H. & H. R. Co. 168 Mass. 308, 38 L.R.A. 631, 60 Am. St. Rep. 397, 46 N. E. 1063; Harmon v. Old Colony R. Co. 165 Mass. 100, 30 L.R.A. 658, 52 Am. St. Rep. 499, 42 N. E. 505; 6 Thomp. Neg. ¶ 7341; Southern R. Co. v. Crowder, 135 Ala. 417, 33 So. 335; Birmingham Southern R. Co. v. Lintner, 141 Ala. 420, 109 Am. St. Rep. 40, 28 So. 363, 3 Ann. Cas. 461; Adams Hotel Co. v. Cobb, 3 Ind. Terr. 50, 53 S. W. 478; Kirkpatrick v. Metropolitan Street R. Co. 129 Mo. App. 524, 107 S. W. 1025; Hey v. Prime, 197 Mass. 474, 17 L.R.A. (N.S.) 570, 84 N. E. 141; Indianapolis & M. Rapid Transit Co. v. Reeder, 42 Ind. App. 520, 85 N. E. 1042; Indianapolis Traction & Terminal Co. v. Menze, 173 Ind. 31, 88 N. E. 929, 89 N. E. 370; Lagergren v. National Coke & Coal Co. 117 N. Y. Supp. 92; Townsend v. Wilmington City R. Co. 7 Penn. (Del.) 255, 78 Atl. 635; Holleman v. Harward, 119 N. C. 150, 34 L.R.A. 803, 56 Am. St. Rep. 672, 25 S. E. 972; Kimberly v. Howland, 143 N. C. 398, 7 L.R.A. (N.S.) 545, 55 S. E. 778; Selleck v. Janesville, 104 Wis. 570, 47 L.R.A. 691, 76 Am. St. Rep. 892, 80 N. W. 944.

Ostrander, J., delivered the opinion of the court:

in the brief for appellant argument is addressed to the alleged positive character of the evidence establishing the negligence of plaintiff's wife, the uncertainty of the evidence to establish the injuries claimed to have been received by her, the rulings of the court, and the charge upon the subject of plaintiff's loss of consortium, the alleged excessive recovery, and the verdict of the jury, which is, it is claimed, opposed to the weight of evidence. These are the subjects of principal discussion and will be considered.

1. It is not clear whether plaintiff's wife did or did not exercise a proper degree of care in entering the elevator under the circumstances she says existed there. The question was for the jury.

2. The nature and extent of the injuries sustained by plaintiff's wife are uncertain. The opinions of the medical men go no further than this,-that her condition at the time of the operation and before and after

it is not in doubt, and, with certain excep- | all of which are matters of sentiment affecttions, might have been the result of the ing the mind and heart, and not the pocket,

injury. These witnesses relate also other causes for such a condition as existed, and it is plaintiff's claim that by his testimony he has eliminated these other possible causes from consideration, for which reason the proximate cause of her condition is not conjectural. On the other hand, it is the contention of defendant that the testi

mony is equally convincing that her troubles, relieved by the surgeons, were of long standing. It is very doubtful whether, exercising themselves wholly outside the domain of conjecture and wholly within that of proper and reasonable deduction from such testimony as they believed, the jury could have reached either material conclusion. As was true in Farrell v. Haze, 157 Mich. 374, 391, 392, 122 N. W. 197, a final condition of the patient was made certain by expert testimony. In the

Farrell Case it was admitted that the cause of the condition was matter for expert determination. In the case at bar the accident (in the Farrell Case the treatment) might have produced the known condition. But in this, as in that, case, the testimony seems to fall short of showing that it is more probable the conditions, relieved by the surgical operation, were caused by the accident. So much plaintiff was bound to prove. Otherwise recovery depends upon attributing to a particular cause an injury which may as well be attributed to another

cause.

3. Consortium has been defined as the person's affection, society, or aid; the right to the conjugal fellowship of the wife, to her company, co-operation, and aid in every conjugal relation. 8 Cyc. 614. See Jacobsen v. Siddal, 12 Or. 284, 53 Am. Rep. 360, 7 Pac. 108; 21 Cyc. 1525; Bouvier's Law Dict. 402.

"The right of consortium is a right grow. ing out of the marital relation, which the husband and wife have, respectively, to enjoy the society and companionship and affection of each other in their life together." Feneff v. New York C. & H. R. R. Co. 203 Mass. 278, 24 L.R.A. (N.S.) 1024, 133 Am. St. Rep. 291, 89 N. E. 436.

"Per quod consortium amisit" (by which he has lost the companionship) was the phrase used when at the common law plaintiff declared for any bodily injury done to his wife by a third person. 3 Bl. Com. 140. Appellant says: "We insist that for loss or diminution of his wife's marriage fellowship,' of her 'company and co-operation,' that even if her society and companionship is less satisfactory than formerly, that in his association and intercourse with her he finds less comfort, pleasure, or happiness,

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At common law when a married woman was injured in her person she was joined with her husband in an action for the injury, and in such action nothing could be recovered for loss of her services or for the expenses to which the husband had been put in taking care of and curing her. There was no allowance for her loss of ability to earn wages, render services, and be helpful to others, because these elements of damage, so far as recoverable at all, belonged to the husband. For such loss of services and such expenses the husband alone could sue. 1 Chitty, Pl. 84. The common law gave the husband the right to the labor, services, and earnings of his wife.

It is not now an answer to the wife's suit to recover damages for injuries to her person that her husband is not joined as plaintiff. The legislature has relieved her of certain disabilities so-called, and has denied to her husband the right to her earnings and the profits of any business she may carry on. It has not, however, put her domestic duties and labor, performed in and about her home for her family upon a pecuniary basis, nor meant to classify such duties as services, nor to permit her to recover damages for loss of ability to perform them. Gregory v. Oakland Motor Car Co. Where Mich., 147 N. W. 614. there is no intentional wrong, the ordinary rule of damages in every case goes no further than to allow pecuniary compensation for the impairment or injury directly done. If a husband is injured and recovers his damages, his wife cannot usually recover damages. The husband has usually, as a result of his action, been compensated for his pain and suffering, past and future, for loss of time, for diminution of capacity to earn money. The minor children of an injured father and those of an injured mother may suffer on account of the injury, but it has never been considered that they had an action therefor. The negligent defendant is supposed to have made full pecuniary compensation to the injured parent. Their loss is regarded, not as direct, but consequential and remote.

If a husband may recover for loss of consortium resulting from physical injury to the wife occasioned by negligent conduct of the defendant, the wife may recover for loss of consortium of the husband under similar,

conditions. The right affected, if it may be, tions upon the subject of loss of consortium,

and, more doubtful, but nevertheless tangible, plaintiff did not fairly sustain the burden of proving that the probable cause of the wife's injuries, relieved by a surgical operation at the cost of the husband, was the injury for which defendant was held re

The judgment is reversed and a new trial granted.

properly called a right, is mutual. No rea-
soning will now support a recovery by one
which will deny it to the other spouse.
"No case has been brought to our atten-
tion, and after an extended examination we
have found none, in which an action for a
loss of consortium alone has been main-sponsible.
tained merely because of an injury to a
person of the other spouse, for which the
other has recovered, or is entitled to re-
cover, full compensation in his own name,
when the only effect upon the plaintiff's
right of consortium is that, through the
physical or mental disability of the other,
the companionship is less satisfactory and
valuable than before the injury." Feneff v.
New York C. & H. R. R. Co. 203 Mass. 278,
280, 24 L.R.A. (N.S.) 1024, 133 Am..3t. Rep.
291, 89 N. E. 436.

MISSISSIPPI SUPREME COURT.
STATE OF MISSISSIPPI, Appt.,

V.

T. J. PHILLIPS.
HILLI

(- Miss. 67 So. 651.)

Constitutional law equal protection
keeping liquor at social club.
1. A state does not unconstitutionally de-
prive one of equal protection of the laws
by forbidding the keeping of intoxicating
liquor in any locker or other place in any
although a property right in such liquors
social club, or carrying it to such club,
is recognized by the law.
Statute

title

scope.

(March 1, 1915.)

If plaintiff has in fact, on account of his wife's injury, lost a service which she habitually rendered, then, as service, and according to the pecuniary value of it, he ought to be permitted to recover. Recovery should be according to the fact. For loss of consortium, of the undefined and indefinable influence of either spouse in the family relation, and the pleasure of the relationship, neither may recover. The Massachusetts de2. A provision prohibiting the carrying cision in Kelley v. New York, N. H. & H. of intoxicating liquors into a club room is R. Co. 168 Mass. 308, 38 L.R.A. 631, 60 Am. within a title indicating that the statute is St. Rep. 397, 46 N. E. 1063, relied upon in to prohibit the sale of such liquors. Gregory v. Oakland Motor Car Co. supra, and often cited in text-books and opinions of judges, has been distinctly overruled as to the point now being considered. Feneff v. New York C. & H. R. R. Co. supra; Bolger v. Boston Elev. R. Co. 205 Mass. 420, 91 N. E. 389. While our own former decisions do not distinctly rule the point, still Bowdle v. Detroit Street R. Co. 103 Mich. 272, 50 Am. St. Rep. 366, 61 N. W. 529, 4 Am. Neg. Cas. 180, is plainly not opposed to it. Nor do I think Gregory v. Oakland Motor Car Co. wrongly decided; no specific claim having been made that the damages were excessive, and the objection being that the

husband could not recover at all for loss of

PPEAL by the State from a judgment A of the Circuit Court for Leflore County sustaining a demurrer to an affidavit charging defendant with unlawfully carrying intoxicating liquor into a social club. Reversed.

The facts are stated in the opinion. Mr. George H. Ethridge, Assistant Attorney General, for the State:

The statute forbidding the keeping of intoxicating liquor in any locker or other place in any social club, or carrying it to such club, is not unconstitutional.

Perrin v. United States, 232 U. S. 478, 58 L. ed. 691, 34 Sup. Ct. Rep. 387; United

Note.

As to power to prohibit the keep of intoxicating liquor, irrespective of any intention to sell it in violation of law, see note to Eidge v. Bessemer, 26 L.R.A. (N.S.) 394.

services of his wife. As to the elements
which may be considered by a jury in fixing
the pecuniary loss of the husband, the
charge delivered in that case was in some re-ing
spects opposed to the conclusion I have
reached (although to that portion of the
charge no objection appears to have been
made), and some of the decisions of other
courts quoted with approval permit a jury
to consider what I now think they should
not be permitted to consider in estimating

the value of the wife's services.

The testimony referred to should not have been received; the court erred in his instruc

As to power to prohibit or restrict one's using intoxicating liquor or having the same in his possession for his own use, see note to Co. v. Campbell, 24 L.R.A. (N.S.) 173. clubs dispensing liquor to members is disThe applicability of liquor laws to social

cussed in the note to State ex rel. Harvey v. Missouri Athletic Club, L.R.A.1915C, 876, and earlier notes there referred to.

Appellee appealed to the circuit court and there demurred to the affidavit, which demurrer was sustained. From the judgment of the circuit court sustaining appellant's demurrer, the state prosecuted this appeal.

States v. Holliday, 3 Wall, 407, 18 L. ed., malt, alcoholic, and intoxicating liquor, to 182; United States v. Sutton, 215 U. S. wit, one bottle of whisky then and there 291. 54 L. ed. 200, 30 Sup. Ct. Rep. 116; containing more than one half of 1 per cent Hallowell v. United States, 221 U. S. 317, of alcohol." 55 L. ed. 750, 31 Sup. Ct. Rep. 587; Ex parte Webb, 225 U. S. 663, 56 L. ed. 1248, 32 Sup. Ct. Rep. 769; United States v. Wright, 229 U. S. 226, 57 L. ed. 1160, 33 Sup. Ct. Rep. 630; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; Bartemeyer v. Iowa, 18 Wall. 129, 21 L. ed. 929; Munn v. Illinois, 94 U. S. 124, 24 L. ed. 83; Giozza v. Tiernan, 148 U. S. 657, 37 L. ed. 599, 13 Sup. Ct. Rep. 721; State v. Bixman, 162 Mo. 1, 62 S. W. 828; Vance v. W. A. Vandercook Co. 170 U. S. 438, 42 L. ed. 1100, 18 Sup. Ct. Rep. 674.

This prosecution was founded upon § 4, chap. 127, Miss. Laws 1914, which read thus: "That no intoxicating liquor within the meaning of this act shall be kept in any locker or other place in any social club or organization for use therein, and all persons carrying such liquor to such club or locker for use therein or keeping the same

Messrs. Wells, May, & Sanders and for such use, shall be guilty of a violation J. A. Tyson, for appellee:

Section 4 of Mississippi Laws 1914, chap. 127, is unconstitutional and void and obnoxious to the Federal and state Constitutions.

Eidge v. Bessemer, 164 Ala. 599, 26 L.R.A. (N.S.) 394, 51 So. 246; State v. Gilman, 33 W. Va. 146, 6 L.R.A. 847, 10 S. E. 283; Ex parte Brown, 38 Tex. Crim. Rep. 295, 70 Am. St. Rep. 743, 42 S. W. 554; State v. Goodwill, 33 W. Va. 179, 6 L.R.A. 621, 25 Am. St. Rep. 863, 10 S. E. 285; State v. Williams, 146 N. C. 618, 17 L.R.A. (N.S.) 299, 61 S. E. 61, 14 Ann. Cas. 562; Com. v. Campbell, 133 Ky. 50, 24 L.R.A.(N.S.) 172, 117 S. W. 383, 19 Ann. Cas. 159; Ex parte Mon Luck, 29 Or. 421, 32 L.R.A. 738, 54 Am. St. Rep. 804, 44 Pac. 693; State v. Gilman, 33 W. Va. 146, 6 L.R.A. 847, 10 S. E. 283; State v. Williams, 146 N. C. 618, 17 L.R.A. (N.S.) 299, 61 S. E. 61, 14 Ann. Cas. 562; Nicol v. Ames, 173 U. S. 509, 43 L. ed. 786, 19 Sup. Ct. Rep. 522; Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037, 18 Sup. Ct. Rep. 594; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; Adams v. Standard Oil Co. 97 Miss. 879, 53 So. 692; Ballard v. Mississippi Cotton Oil Co. 81 Miss. 507, 62 L.R.A. 407, 95 Am. St. Rep. 476, 34 So. 533; Hunt v. Wright, 70 Miss. 298, 11 So. 608; Ex parte Wren, 63 Misc. 512. 56 Am. Rep. 825; State v. Fulks, 207 Mo. 26, 15 L.R.A. (N.S.) 430, 105 S. W. 733, 13 Ann. Cas. 732.

of this act.” ·

The demurrer of defendant below was sustained upon the theory that said section is unconstitutional because it contravenes the 14th Amendment to the Constitution of the United States, as well as article 3, § 14, of our state Constitution.

It was also urged below, and here, that chapter 127, Laws 1914, is void because it violates § 71 of the state Constitution, referring to the title of bills introduced in the state legislature.

The position of appellant, briefly stated, is that the statute under review recognizes that intoxicating liquors are property, and that one may lawfully own, possess, and use the same, and that the limitation upon this right imposed by the statute bears no reasonable relation to the policy of the state to suppress the sale of intoxicants, and also that the statute is discriminatory and denies to the persons involved equal protection of the laws. For these reasons, it is claimed that the statute violates the 14th Amendment of the Constitution of the United States and article 3, § 14, of our own state Constitution. To support his contention appellee cites the following cases, viz.: Eidge v. Bessemer, 164 Ala. 599, 26 L.R.A. (N.S.) 394, 51 So. 246; State v. Gilman, 33 W. Va. 146, 6 L.R.A. 847, 10 S. E. 283; Ex parte Brown, 38 Tex. Crim. Rep. 295, 70 Am. St. Rep. 743, 42 S. W. 554; State v. Goodwill, 33 W. Va. 179, 6 L.R.A. 621, 25 Am. St. Rep. 863, 10 S. E. 285; State v. Williams, 146 N. C. 618, 17 L.R.A.

Cook, J., delivered the opinion of the (N.S.) 299, 61 S. E. 61, 14 Ann. Cas. 562;

court:

Appellee was convicted by a justice of the peace upon an affidavit charging that he "on or before the 23d day of November, 1914, unlawfully did then and there carry to the club of the Benevolent Protective Order of Elks, the same then and there being a social club and organization, for the use therein as a beverage, vinous, spirituous,

Com. v. Campbell, 133 Ky. 50, 24 L.R.A. (N.S.) 172, 117 S. W. 383, 19 Ann. Cas. 159; Ex parte Mon Luck, 29 Or. 421, 32 L.R.A. 738, 54 Am. St. Rep. 804, 44 Pac. 693; Noble State Bank v. Haskell, 219 U. S. 104, 55 L. ed. 112, 32 L.R.A. (N.S.) 1064, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487.

Eidge v. Bessemer, supra, decided by the supreme court of Alabama, it seems to us,

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