societies usually hold their meetings, a minis- were granted to said First parish of the terial fund is taxable.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 405-414; Dec. Dig. § 244.*]

Report from Supreme Judicial Court; Cumberland County.

Action by the Inhabitants of Gorham against the Trustees of the Ministerial Fund in the First Parish in Gorham in the County of Cumberland. On report. Judgment for plaintiff.

Argued before WHITEHOUSE, C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ.

town of Gorham by the commonwealth of Massachusetts for ministerial purposes at the time of the incorporation of said town in 1764."

The defendant's contention is, as we understand it, that the property assessed (at least so much of it as was not purchased from the proceeds of the bequests) is within that part of subdivision 2, § 6, c. 9, R. S., which exempts from taxation "all property which by the articles of separation is exempt from taxation."

The last sentence of paragraph "Seventh" of section 1 of the act of separation of the

Scott Wilson and E. L. Bodge, for plaintiff. district of Maine from Massachusetts (Rev. John A. Waterman, for defendant.

KING, J. [1] This case is reported to the law court on an agreed statement of facts. It is an action to recover an assessment of $282.24, made for the year 1910, upon 228 shares of bank stock owned by the defendant and valued at $22,800. The defense is that the property was exempt from taxation.

St. 1883, p. 1005) reads: "And all lands heretofore granted by this commonwealth, to any religious, literary or eleemosynary corporation, or society, shall be free from taxation, while the same continues to be owned by such corporation, or society." It is specified in the agreed statement, as above quoted, that the lands sold, from the proceeds of which the property assessed was purchased,

in 1764."

The argument in support of the defendant's contention is, therefore, this: First, that if the lands granted to the First parish of Gorham had not been sold they would have been exempt from taxation under said exempting clause of the act of separation; and, second, that by the sale of the lands, under the act of February 5, 1802, the property was merely changed from one form to another-from real estate to a fund unmistakably identified as its substitute-and that the fund likewise remains exempt.

The defendant is a corporation incorporat-"were granted to said First parish of the ed under an act of Massachusetts, approved town of Gorham by the commonwealth of February 5, 1802, entitled "An act authoriz- Massachusetts for ministerial purposes at ing the sale of ministerial lands in the First the time of the incorporation of said town parish in Gorham to raise a fund for the support of the ministry and appointing trustees for those purposes." St. 1801, c. 28. Under the provisions of that act, the defendant corporation was authorized to sell and convey all the parsonage and ministerial lands belonging to said parish, and to put at interest the proceeds thereof, and the interest accruing thereon, "until a fund shall be accumulated which shall yield early the sum of four hundred dollars interest." The act further provides "that as soon as an interest to that amount shall accrue, the trustee shall forthwith apply the same for the annual support of the Congregational minister which may then be settled in said parish, or which may thereafter be settled there. And so long as the said parish shall remain without a settled minister, the annual interest aforesaid shall be put out at interest and secured as aforesaid to increase the said fund until there be a settlement of a minister, and it shall never be in the power of said parish to alienate or any wise alter the fund aforesaid."

But the exempting clause of the act of separation now under consideration expressly provides that the lands granted to the corporations or societies therein mentioned were to be exempt from taxation only "while the same continued to be owned by such corporation, or society." Obviously, this exemption could not be held to apply to any lands which were not owned at the time of the passage of the act of separation by some corporation or society therein referred to.

So then, if it should be conceded that the The agreed statement recites: "That said lands which Massachusetts had granted in bank stock was purchased from funds or the 1764 to the First parish of Gorham for minaccumulations thereof received from the sale isterial purposes would be embraced in an of its parsonage and certain ministerial exemption of lands granted "to any religious, lands belonging to said First parish of said literary or eleemosynary corporation or so. town of Gorham in accordance with the pro-ciety," still we think the exemption in quesvisions of the above act, and also from four tion was not applicable to those lands, becertain bequests to said defendant corpora- | cause they had been sold under the express tion amounting in all to three thousand two authority of Massachusetts long before the hundred forty-three dollars and eighty-seven act of separation was passed, as we think it cents ($3,243.87); that said ministerial lands must be reasonably inferred from the report. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexos

and were not then owned by said First par- | But we will add that it is now well settled ish of Gorham.

that a corporation, established to manage and apply a fund towards the support of a minister, is not a charitable institution. Trustees of Greene Foundation v. City of Boston. 12 Cush. 54, 59.

[4] But, moreover, an examination of the various statutory enactments in this state relating to the taxation of a ministerial fund shows plainly we think a legislative purpose to make such a fund taxable. In the tax act of 1845 (chapter 159, § 10, par. 8) it was provided: "All property held by any religious society as a ministerial fund shall be assessed to the treasurer of such society," etc. This provision, however, was repealed in 1855 (chapter 178). And, in turn, that repealing act of 1855 was repealed in 1856 (chapter 279). Again in 1857 (chapter 30) this provision of the tax act of 1845, providing for the assessment of a ministerial fund, was once more repealed, and such a fund was expressly included in the enumerated exemptions from taxation. In the Revised Statutes of 1857 (chapter 6, § 6) the law so appears, and it so remained until 1864, when, by chapter 245 of the laws of that year, the exemption of a ministerial fund was repealed, and it was then further expressly enacted that "the property held by any religious society as a ministerial fund shall be assessed to the treasurer of such society; and if it be real estate, it shall be assessed in the town where it is situated; and if it consists of personal property it shall be assessed in the town where such society usually hold their meetings."

[2] Neither do we think it can be held that the fund which was created from the proceeds of the sale of the lands is exempt from taxation, under this exempting clause of the act of separation, on the theory suggested, that the property was only changed in form by the sale. Indeed, it seems a natural and indisputable conclusion, from the language used in that clause, "all lands heretofore granted * shall be free from taxation, while the same continues to be owned by such corporation, or society," that only the lands, and not the proceeds thereof when sold, were to be free from taxation. It may not be necessary to suggest anything further to strengthen that conclusion, and yet much support is given to it in the fact that the proceeds of the sale of these lands had been constituted a ministerial fund by a special act of Massachusetts, passed many years before the act of separation, and containing no provision that the fund so constituted should be free from taxation. Had it been the purpose of Massachusetts that the proceeds of the sale of these lands should remain free from taxation, it is at least reasonable to suppose that it would have been so provided in the special act by which those proceeds were constituted a ministerial fund. The strong presumption, therefore, is that the clause of exemption contained in the act of separation was not intended to apply to the proceeds of the sale of the lands therein mentioned. "All doubt and uncertainty as to the meaning of a statute is to be weighed against exemption. Taxation is the rule and exemption the exception." Auburn v. Y. M. C. Association, 86 Me. 244, 247, 29 Atl. 992. It is therefore the conclusion of the court that the property assessed was not exempt under our statute as property made free from taxation by the act of separation, and accordingly the determination of this case might safely rest on that conclusion. But we present some further considerations as pertinent to the fundamental question here involved, whether this fund held by the defendant as trustee was taxable in Gorham. In the absence of any evidence or stipulation to the contrary, we think the funds received by the defendant from the several bequests made to it as mentioned in the agreed statement must be regarded as held by it for the same uses and purposes as the funds received by it for the sale of the lands. Hence it follows that all the property as-press legislation changing the meaning of the sessed represented a ministerial fund, which the defendant corporation held as trustee for the uses and purposes expressed in the act of February 5, 1802.

[3] It has not been argued that this fund so held by the defendant is specially exempted under our statute as the property of a charitable or benevolent institution, and for that reason, perhaps, we may regard it

We find no other special legislation touching the subject. In the revision of 1871, there is no exemption from taxation of a ministerial fund, as there was in the revision of 1857, but, on the other hand, clause 8 of section 14, c. 6, reads: "Personal property held by religious societies shall be assessed to the treasurer thereof in the town where such societies usually hold their meetings." It will be noticed that no express mention is made in this clause of the revision of a ministerial fund, but in the margin of the revision against this clause is the reference "1864, chapter 245, section 2," showing that this clause of the revision is the revised expression of the specific statute wherein it was re-enacted that property held by any religious society as a ministerial fund should be taxed. And, in the absence of any ex

act of 1864, we think it should not be held that the clause as expressed in the condensed and concise language of the revision does not embrace a ministerial fund. St. George v. Rockland, 89 Me. 43, 45, 35 Atl. 1033. Precisely the same language is used in the Revisions of 1883 and 1903. R. S. 1883, c. 6, § 14, cl. 9; R. S. 1903, c. 9, § 13, cl. 9.

If property held by a religious society as

take to build it for themselves, the master is not liable to a servant who is injured by reason of a defect in its construction; and this is so, even if one of the servants who helped build the staging was foreman of the crew.

by statute, as we think the above-mentioned to build a staging, and the servants underprovisions clearly show, then it would seem to follow that property, the title to which is in a corporation created expressly for the purpose of holding and administering it as a ministerial fund, should not be held free from taxation in the absence of an express exemption thereof.

Finally, we think the case of Baldwin v. Trustees of Ministerial Fund, 37 Me. 369, may be cited as an authority directly in point that the property assessed in the case

at bar was taxable. In that case, as in this, the defendants were incorporated as trustees under an act of Massachusetts, passed in 1816 (St. 1816, c. 115), which appears to have been like, if not identical with, the act in this case. Under the provisions of that act lands which had previously been reserved by Massachusetts for Baldwin for the support of the ministry were sold in 1818, and the proceeds became under the provisions of the act a ministerial fund held by the defendants as trustees, the same as in this case. The fund was there taxed to the defendants, and it was held that it was properly so taxed. The question raised in this case, that the fund was exempt under the exempting clause of the act of separation, was not raised by counsel in that case, and was not considered in the opinion of the court. In other respects that case seems to be on all fours with this.

In Trustees of Greene Foundation v. Boston, supra, a ministerial fund held by a corporation as trustee, incorporated under a special act of Massachusetts for the purpose, was held taxable to the corporation. The forceful reasoning of the learned Chief Justice Shaw as expressed in that case throws light upon some of the questions involved in this case.

No other question is raised as to the assessment of the tax, and it is admitted that all the required statutory proceedings essential to the maintenance of a suit for taxes were complied with.

For the reasons stated, it is the opinion of the court that the property assessed in this case was not exempt from taxation, and was lawfully taxed to the defendant, and in accordance with the stipulation of the report the defendant is to be defaulted for the amount of the assessment. Defendant defaulted.

Judgment for plaintiff for $282.24.

(109 Me. 40)

VEANO v. CRAFTS et al. (Supreme Judicial Court of Maine.

1912.)

(Syllabus by the Court.)

March 9,

1. MASTER AND SERVANT (§ 190*)-INJURY TO SERVANT-DEFECTIVE STAGING.

Servant, Cent. Dig. §§ 449-474; Dec. Dig. § 190.*]

[Ed. Note.-For other cases, see Master and

2. TRIAL (§ 159*)-NONSUIT EVIDENCE.

A nonsuit is properly ordered, when there is no evidence to support a finding which is essential to the plaintiff's right to recover. Dig. §§ 341, 359-366; Dec. Dig. § 159.*] [Ed. Note.-For other cases, see Trial, Cent.

3. APPEAL AND ERROR (§ 501*)-EXCEPTIONS

-PRESERVATION.

Exceptions taken during a trial, but not noticed in the bill of exceptions, cannot be considered by the law court.

Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 501.*1

Exceptions from Supreme Judicial Court, Penobscot County.

Action by Teddy Veano against Arthur A. Crafts and George W. Stacey to recover damages for personal injuries while in the employ of defendants. Judgment of nonsuit, and plaintiff excepts. Exceptions overruled.

Argued before WHITEHOUSE, C. J., and SAVAGE, CORNISH, BIRD, HALEY, and HANSON, JJ.

George E. Thompson and Charles J. Dunn, for plaintiff. C. W. Hayes, for defendants.

SAVAGE, J. Exceptions to order of nonsuit.

The defendants, who are copartners under the name of the Shirley Lumber Company, were building a one-story shed, with single roof in lean-to form, adjoining and attached to their mill in Shirley. The shed was 32. feet long by the side of the mill, and 16 feet wide. The row of studding on the back side of the shed was stayed by stay laths, so called. nailed to the studding at one end and to the window casing in the side of the mill at the other. The stay laths were therefore about 16 feet long. The window casing was a oneinch pine board, and the end of the stay lath of which the plaintiff here complains was nailed to the casing with three wire board nails. During the progress of the work, it became necessary to have a staging on the inside of the shed next to the mill, in order that the workmen could conveniently handle and fasten the rafters overhead. Instead of building a staging specially for the purpose, the workmen, including one Huff, who was the foreman and had charge of the erection of the building, placed planks for a staging across the stay laths near the mill structure, using them for supports. No support had been placed under the stay laths between their ends.

The plaintiff was employed by the defendants in general work about the mill or yard, When a master furnishes to his servants, employed in constructing a building, sufficient but in the afternoon of the day in question materials of a suitable character with which was set to work with other men on the shed.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

The staging was then in place and part of the rafters had been put on. The men began to place other rafters in position. The plaintiff got onto the staging to spike the upper end of a rafter, and while so engaged the end of a stay lath underneath the staging pulled away from the window casing to which it had been nailed. The three nails pulled out. The staging planks fell, and the plaintiff was thereby precipitated to the stringers under him and sustained serious injuries, for which he seeks to recover, at common law in this action.

The case turns upon whether the defendants had undertaken to furnish the staging as a completed structure for the use of the plaintiff, or whether they merely undertook to furnish suitable and sufficient materials with which their servants undertook to build the staging for themselves, and as they pleased. If the jury would be warranted by the evidence in finding that the former alternative is true, that is, that the defendants undertook to furnish the staging as a completed structure, the order of nonsuit was erroneous; if the other, and the only other, alternative is true, the order was cor

rect.

and the fellow servant rule of assumption of risk applies.

The facts in this case are widely different from those in McCarthy v. Claflin, 99 Me. 290, 59 Atl. 293, and Elliot v. Sawyer, 107 Me. 195, 77 Atl. 782, cited and relied upon by the plaintiff. They are more nearly like the facts in Pellerin v. Paper Co., 96 Me. 388, 52 Atl. 842, Amburg v. Paper Co., 97 Me. 327, 54 Atl. 765, and Loud v. Lane, 103 Me. 309, 69 Atl. 270, 19 L. R. A. (N. S.) 680.

[2] The order of nonsuit was correct, and the plaintiff's exceptions must be overruled. [3] The plaintiff's counsel have argued an exception to the exclusion of testimony. The record shows that an exception was noted at the time, but it was not preserved or referred to in the bill of exceptions, and for that reason cannot be considered. Exceptions overruled.

(2 Boyce, 511) KEATLEY v. GRAND FRATERNITY. (Superior Court of Delaware. New Castle. Dec. 11, 1911.)

1. EVIDENCE (§ 553*)-OPINION EVIDENCEHYPOTHETICAL QUESTIONS.

A hypothetical question, put to a physician testifying as an expert, need not contain a complete statement of the facts; but the omissions may be brought out on cross-examination. Cent. Dig. §§ 2369-2374; Dec. Dig. § 553.*] [Ed. Note.-For other cases, see Evidence, 2. INSURANCE (§ 712*)-FRATERNAL INSUBANCE CONTRACTS-WHAT LAW GOVERNS.

[1] We think the case clearly falls within the second of the above-named classes. There is no evidence which would warrant a finding that the defendants undertook to build this staging. It is true that the defendants had a foreman on the work, and that the jury would have been warranted in finding that the foreman assisted in making the staging in the manner stated. But that is not enough. Whether the servants of the defendant, including the foreman, were fellow servants of each other in building the staging, so that the negligence of one is as-712.*] sumed by each of the others, or whether 3. INSURANCE (§ 723*) - LIFE INSURANCE they were not, depends, not upon their relative rank as servants, but upon the nature of the duty that was being performed. Small v. Manufacturing Co., 94 Me. 554, 48 Atl. 177.

A benefit certificate, issued by a foreign corporation at its home office in a sister state, on an application providing that it was made to the corporation at its home office, is a contract of the sister state, governed by its laws.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 173-175, 293, 1934; Dec. Dig. §

WARRANTIES IN APPLICATION.

At common law, answers to questions in an application for life insurance were taken to be literal warranties of their truth, and, if false, a contract of insurance was vitiated, though the answers were made in good faith, regardless of the materiality of the questions or answers to the risk.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dec. Dig. § 723.*] 4. INSURANCE (§ 723*) - LIFE INSURANCE WARRANTIES IN APPLICATION.

ing that no untrue statements in an application Act Pa. June 23, 1885 (P. L. 134), providfor life insurance, made in good faith by the applicant, shall effect a forfeiture, unless the same relate to a matter material to the risk, excludes literal warranties, so far as they may be resorted to, to enforce immaterial matters; and an untrue statement must be of a material matter to constitute a defense, and whether a statement in an application made in good faith was true, and whether, if false, it prejudiced the risk, are for the jury.

Here it is not shown that the defendants themselves had anything to do with the details of the construction of the shed. They might well anticipate that a staging would be convenient, if not necessary, in putting in place a few rafters, which, so far as the case shows, was the only use for which a staging was required. But they furnished at hand all the materials that were needed, and we think that the only understanding that can be imputed to them is that the workmen should make such stagings out of the materials as they needed, and in such manner as pleased themselves. And in such a case the master is not chargeable for the negli[Ed. Note. For other cases, see Insurance, gence of one of the servants causing injury Cent. Dig. §§ 1859-1865; Dec. Dig. § 723.*] to another, even though the negligent serv-5. TRIAL (§ 306*)-DELIBERATIONS OF JURY. ant may chance to be superior in grade to The jury are the judges of the weight of the injured one. They are fellow servants, the testimony, and, where the evidence is con

flicting, they must, if possible, reconcile it, and, when they cannot do so, they must reject that which is unworthy of credit; regard being given to the demeanor, fairness, character, intelligence, and interest of the witnesses.

cupation was that of freight conductor, and who, until about a week prior to his death, October 15, 1909, was able to perform his duties; in June, 1908, he consults a physician, complaining to him of frequent and excessive urination, of passing large quantities of water frequently, of being worried at night from loss of sleep and rest, of having to pass urine almost every 15 minutes at night, of craving sweets, of being always thirsty, of having lost 15 or 20 pounds withbeing examined twice a week for four sucin a short time previous, whose urine upon cessive weeks during June, 1908, through Fehling's test, shows that it is heavily load

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 731, 742; Dec. Dig. § 306.*] 6. INSURANCE (§ 723*) - FRATERNAL INSURANCE-FALSE STATEMENTS IN APPLICATION. Where an application for life insurance, governed by Act Pa. June 23, 1885 (P. L. 134), providing that no untrue statement in an application, made in good faith, shall effect a forfeiture, unless it relates to a material matter, concealed the fact that applicant had suffered from a disease and had undergone an operation therefor some eight or nine years prior to the application, there could be no recovery on the policy, if by reason of the dis-ed with sugar; and thereafter, from June, ease and operation his health was seriously impaired, thereby affecting the risk.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dec. Dig. § 723.*] 7. INSURANCE (§ 723*) — FRATERNAL INSURANCE-FALSE STATEMENTS IN APPLICATION. The failure of insured to disclose in his application that he suffered from diabetes or other serious ailment affecting his general health at the time of the application defeated a recovery on the policy.

1908, up to the time of his death, such person continues to lose or fall away in weight, losing as much as eight pounds in one week, and is observed to grow decidedly thinner, and from May, 1909, until the time of his death, October 15, 1909, he is seen to drink water frequently and in unusual quantities, taking as much as three pints at half hour intervals, and sometimes this much twice within half an hour, drinking in this manner half a dozen times a day together with frequent urination, sometimes occurring at Where an applicant for insurance made the instant of his drinking; that he perfalse answers respecting matters material to spired freely and was strong enough to walk the risk, or made willful false answers to de-a considerable distance to his place of emceive insurer, a recovery could not be had on a policy governed by Act Pa. June 23, 1885 (P. L. 134).

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dec. Dig. § 723.*] 8. INSURANCE (§ 723*)-MISREPRESENTATIONS

IN APPLICATION-EFFECT.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dec. Dig. § 723.*]

Action by Mary C. Keatley against the Grand Fraternity, a corporation under the laws of Pennsylvania. Verdict for plaintiff. See, also, 78 Atl. 874.

Action of covenant (No. 45, May term, 1910).

This action was brought by the plaintiff, who was the widow of William J. Keatley,

deceased, to recover the sum of $2,000 insurance under a death benefit certificate of

membership issued by the defendant to the

plaintiff's husband in which she was named as the sole beneficiary. Payment was refused on the ground that the deceased made untrue answers in his application for membership and was at the time in bad health. Argued before PENNEWILL, C. J., and BOYCE and RICE, JJ.

John Biggs and Armon D. Chaytor, for plaintiff. Leonard E. Wales and Joseph A. Langfitt, for defendant.

ployment on Sunday previous to his death which occurred on Friday; what, in your opinion, was the disease, if any, that affected such person, in June, 1908, and March, 1909?"

(Objected to by counsel for plaintiff as not a complete statement of the testimony.)

BOYCE, J. It occurs to the court that the suggestion made by counsel for plaintiff in examination. We overrule the objection. their objection may be brought out in cross

tained in the question, and assuming that "A. Basing my opinion upon what is conthese observations were correctly made, I would suspect diabetes mellitis.

of the disease, if any, that affected such per"Q. What, in your opinion was the nature son in June, 1908, and March, 1909, with respect to its seriousness and progressiveness or otherwise?"

(Objected to by counsel for plaintiff on the same ground as before stated. Objection overruled.)

"A. I regard diabetes mellitis as a serious and progressive disease.

"Q. Basing your opinion upon the truth of the facts as stated in this question, you say that was a serious illness? "A. Yes, sir."

BOYCE, J. (charging the jury). Gentlemen of the jury: This is an action in cove

[1] At the trial counsel for defendant propounded to T., a practicing physician (who was examined, qualified and admitted as an expert, but who did not hear all of the testimony in the case), the following questionnant, brought by Mary C. Keatley, the plainas based upon the testimony: "Doctor, given a man of from 49 to 50 years of age, weighing from 190 to 210 pounds, whose oc

tiff, against the Grand Fraternity, a corporation of the state of Pennsylvania, the defendant, to recover the sum of $2,000 on a

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes