Haden v. Clarke — 32 N.Y. St. Rep. 478

Majority

p. 478

Margaret Haden, Resp’t, v. Wallace Clarke, as President, etc., of the Utica Toboggan Club, App’lt.

(Supreme Court, General Term, Fourth Department

Filed May 23, 1890.)

Headnote

1. Associations — Proof on membership.

_ Where a defendant sued as the president of an unincorporated association fails after notice to produce its constitution and by-laws, proof that, in addition to the original members, tickets have been issued to a considerable number of other persons, designating them as members, and giving them the same privileges as the original promoters, is sufficient to sustain a finding that it was an • association consisting of more than seven persons.

2. Same — Evidence.

Under such circumstances paroi evidence of the number of members is admissible.

3. Same.

Tickets issued in a different year, but which are shown to be the same in form as those of the year in question, are admissible to show that holders of such tickets were members.

4. Negligence — Toboggan slides.

The building and maintenance of a toboggan slide across one of the principal streets of a populous city, with little or no protection against collision with passers, is negligence.

5. Same — Evidence.

Permission by the mayor to use a portion of the streets for toboggan purposes is inadmissible in an action for injuries caused thereby, as he has no authority to grant such permission.

6. Same — Married woman mat recover nor pain and suffering.

In an action for personal injuries, a married woman may recover for the pain and suffering caused thereby.

Appeal from a judgment in favor of the plaintiff, entered in Oneida county May 11, 1889, for $500 damages, with costs, and from an order denying the defendant’s motion for a new trial, made on the minutes of the trial judge.

The action was to recover damages for personal injuries to the plaintiff, occasioned by a collision between a toboggan passing over a slide constructed by the above-named club and a sleigh in which the plaintiff was riding along one of the streets in or near the city of Utica. The action was against the defendant as president of the Utica Toboggan Club. The toboggan slide erected and maintained by that club intersected and crossed the street upon which, the plaintiff was riding at the time of her injury. The plaintiff alleged that the .club was an unincorporated association consisting of more than seven persons. This was denied by the defendant.

Matteson & Harvey, for app’lt; 8. M. Idndsley, for resp’t.

The appellant contends that the judgment in this action should be reversed and a new trial granted upon the grounds:- 1. That the Utica Toboggan Club was not an unincor

p. 479

porated association consisting of seven or more persons, and hence the action was improperly brought against the defendant; 2, that as the plaintiff was a,married woman, the damages sustained were the property of her husband, and, therefore, she was not entitled to recover; 3, that the defendant, or the association of which he was president, was guilty of no negligence or wrongful act which caused the plaintiff’s injury; 4, that the plaintiff'was guilty of contributory negligence; 5, that the verdict of the jury was .against the evidence; 6, that the court erred in its rulings as to the admission and rejection of evidence.

A proper determination of this appeal requires but a brief discussion of the questions presented. Most of the propositions contended for by the appellant are governed by well settled principles of law, which are so generally understood that a review of the authorities bearing upon them is unnecessary. We shall, therefore, content ourselves with but little more than a brief statement of our conclusions in this case.

First. Was the Htica Toboggan Club an unincorporated association consisting of seven or more persons ? That this club was unincorporated is not denied. That there was an association of persons bearing that name is admitted, but that it consisted of •seven or more persons is disputed. The constitution and by-laws •of the club were not introduced in evidence. The defendant was subpoenaed and given notice to produce them, but did not comply with the requirements of either the subpoena or notice. The court then admitted paroi evidence as to the manner in which the club was organized and as to its membership. The evidence as to who were members was not definite or conclusive, but it tended to show that, in addition to the original or first members of the association, tickets were issued to a considerable number of other persons ; that such persons were designated on the tickets as members; that all were subscribers to the fund expended in maintaining the business of the club; and that the persons so subscribing, to whom such tickets were issued, paid the same amount towards the maintenance of the club, and. possessed the same rights and privileges, as the original promoters of the enterprise. Under the circumstances disclosed by the evidence we are of the opinion that the proof was sufficient to justify the finding that the club was an unincorporated association consisting of more than seven persons, and to sustain the action against the defendant as president of such club.

Second. The fact that the plaintiff was a married woman was not a bar to her right of recovery in this action. The trial court charged the jury that she was not entitled to recover for her loss of time and inability to labor, nor for medical attendance, care or nursing, but could only recover for the pain and suffering which she had endured. We think the doctrine of the case of Bennett v. Bennett, 116 N. Y., 584 ; 27 N. Y. State Rep., 679, is controlling upon this question, and is adverse to the contention of the defendant.

Third. A careful examination of the evidence in this case has led us to the conclusion that it was sufficient to justify the jury

p. 480

in finding that the association of which the defendant was president was guilty of a wrongful, dangerous and negligent act in building and maintaining its slide across one of the principal streets in or near a populous city, with little or no protection against collision between those riding thereon at a very high rate of speed and travelers passing along the public street. The verdict upon that branch of the case was fully sustained by the evidence.

Fourth. We think the question, whether the plaintiff was guilty of negligence which contributed to her injury, was, under the evidence, a question of fact for the jury, and that its finding should not be disturbed. Tolman v. S., B. & N. Y. R. R. Co., 98 N. Y., 203 ; Greany v. L. I. R. R. Co., 101 id., 419; Parsons v. N. Y. C. & H. R. R. R. Co., 113 id., 355 ; 22 N. Y. State Rep., 697.

Fifth. The evidence was sufficient to sustain the verdict, and there was no such preponderance in the defendant’s favor as would justify an interference therewith.

Sixth. This brings us to the consideration of the appellant’s exceptions to the rulings of the court in regard to the admission and rejection of evidence. The appellant objected to paroi evidence of the existence of the Utica Toboggan Club and the number of its members. After the defendant had failed to produce the constitution and by-laws upon notice or subpoena, the court admitted the evidence. If it be conceded that the constitution and by-laws were the best evidence, still, under the circumstances disclosed in this case, we think it was not error for the court to admit the evidence, as the defendant had refused to obey the subpoena or comply with such notice.

Uor do we think that the court erred in admitting in evidence a subscription ticket issued by the club in 1885-86, as the proof was that the ticket in use at the time of the accident was in the same form. It tended to show that the subscribers who held such tickets were members of the association.

It was not error to exclude the evidence of the permission by the mayor of Utica to use a portion of the streets for toboggan purposes, as he had no authority to grant such permission. The ordinance which is relied upon by the appellant as authority for such permission does not, we think, confer it. • We find no other exception that requires special consideration.

We think the evidence fully justified the verdict, and that none of the defendant’s exceptions were well taken. Hence it follows that the judgment and order should be affirmed.

Judgment and order affirmed, with costs.

Harbin, P. J. and Merwin, J., concur.