Pokrefky v. Detroit Firemen's Fund Ass'n

131 Mich. 38

• Court: Michigan Supreme Court
• Decided: June 3, 1902
• Docket: docket No. 141; docket No. 1
• Status: Published

Opinions

Grant, J.

For a statement of the case we refer to 121 Mich. 456 (80 N. W. 240). The case was then reversed, and new trial ordered. That trial has been had, resulting in a verdict in favor of the defendant. The sole question litigated upon the second trial was whether Mr. Pokrefky had assented to or waived the change in the by-laws so as to be bound by such change. The question was left to the jury, who found such assent or waiver. The court instructed the jury that they must find “that there was on his part a clear and explicit understanding as to his rights in the matter, and that he intended to waive those rights; and that the burden of proof was upon the defendant to establish such waiver.” The sole question is, Was there any testimony reasonably tending to show such waiver ?

Upon the last trial defendant contended that Pokrefky had not signed any protest against this amendment to the by-laws. The jury by their verdict have established the fact that he did not. The matter was evidently very generally discussed by the members of the association, and the most of them took sides for or against the amendment. Mr. Dupont, one of the officers of the fire department, testified that Mr. Pokrefky told him that “he [Pokrefky] was well satisfied with $1,500, and $5 a week for injuries with pay, and $10 for sickness without pay.” By the bylaws the dues were increased from $1 quarterly to $1 monthly. Mr. Pokrefky before his death paid these dues without protest, and each assessment that had been levied under the amendment since it was adopted. Counsel for plaintiff contend that he was in the position of a debtor, charged with no obligation to speak; citing Chippewa Lumber Co. v. Phenix Ins. Co., 80 Mich. 116 (44 N. W. 1055). The facts in the two cases are dissimilar. While not perhaps controlling, it is significant that Mr. Pokrefky paid the increased dues, making no protest. If the association could not change the amount to be paid upon his death, for the same reason it could not charge him more for his dues than were provided when he joined. He could have retired from the association instead of paying the increased fees and receiving certain benefits from the change. He should have, at least, protested, and tendered the fees required by the original by-laws, unless he desired to waive them.

We think there was evidence for the jury, and the judgment is affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.