Smith v. Board of Trustees of the Wisconsin Veterans' Home

Barnes, J. If the plaintiff had been in possession of facts which reasonably induced the belief in his mind that the trustee, James, and the matron, Mrs. White, were criminally intimate or were guilty of unbecoming conduct, and complaint had been made in the proper manner and to the proper parties, his conduct might be characterized as courageous and commendable. An institution supported by the bounty of the state should be above suspicion in the respect complained of, and its inmates could ill afford to remain silent if reasonably convinced that it was being used to harbor the mistress [633] -of a member of tbe governing body of tbe corporation. Such reprehensible conduct was likely to be discovered sooner or later, and when discovered might well react upon the institution itself, the maintenance of which is a matter of moment to those being cared for. So much is said by way of preface, lest what follows might be erroneously construed as intimating that members of the Wisconsin Veterans’ Home must hold ■their peace on penalty of discharge when it is their duty to speak. It is apparent from the record that before plaintiff attended the encampment of the Grand Army of the Bepublic at Mari-nette in June, 1906, he had heard rumors to the effect that illicit relations were being maintained between Mr. James and Mrs. White, but that he had no actual knowledge that such relations existed, and had nothing more substantial upon which to base his subsequent statements than the floating gos•sip of idle tongues. He industriously circulated such rumors among the delegates attending the encampment. While ho denies, in a way, that he did more than to report the rumors he had heard, the evidence is overwhelming and convincing that he stated as a matter of fact that Mr. James and Mrs. White were guilty and that he could prove his statement by .an abundance of witnesses if the opportunity were only afforded him. At the close of the encampment at Marinette he wrote to T. J. Jeffers, an inmate of the Home, that he was •satisfied that the rumor he testified he had circulated was “idle camp talk” indulged in “for the purpose of injuring Mrs. W., and that more than anything else,” and that he “was dragged into it by a person” he believed he could depend upon as his friend. At the meeting of the board of trustees of the Home in July, 1906, he was called before it, but the evidence is unsatisfactory as to what took place. Ho full record of •the proceedings was preserved, and there is dispute and confusion in the evidence as to what transpired. It does appear .that the plaintiff was admonished to discontinue further gos [634] sip, and was told that were it not for his age and physical and mental condition.he would be dishonorably discharged. This leniency evidently induced the belief in his mind that the board was afraid to discharge him, and he apparently continued to bruit the rumors he had been cautioned to desist from circulating. When given an opportunity at the September meeting to make good his accusations, he utterly failed to produce any proof that would justify him in persisting in-making his charges. Considering the age, the condition, and the infirmities of' the inmates of this Home, it is to be expected that they will be treated with consideration and forbearance. Fault-finding is often a characteristic, if not a prerogative, of the aged and the infirm, and so long as it is not productive of harm it may well be treated as innocuous. But in an institution of this kind, usually containing 600 or 700 inmates, it is self-evident that some discipline must be maintained and that some wholesome restraint must be placed upon the anile tendency of the inmates to garrulity when it means detriment to-the institution itself as well as irreparable injury to others. The fault of the plaintiff here was no idle maundering or mere peccadillo, and could not be overlooked by any self-respecting institution. The defendant is an eleemosynary corporation organized under the laws of Wisconsin. Corporations organized for purposes akin to that for which defendant was organized have-the right to prescribe reasonable rules governing the admission of inmates and also have the right to prescribe like rules-pertaining to their discharge. Sec. 1785, Stats. (1898), provides that as to such corporations “the proper officers designated by the by-laws may, in their discretion, at any time discharge any such inmate when, in their judgment, it shall be-for his interests or the interests of the corporation.” The trustees were acting within their statutory powers and in accordance with their by-laws, rules, and regulations in making: [635] tbe discharge. They seem to have proceeded regularly and without undue haste in making it, and the circuit court was right in directing a verdict for the defendant. The board was warranted in believing that the conduct of the plaintiff was reprehensible, and that the welfare of the institution demanded that he sever his connection with it. Mr. James did not vote upon the resolution to discharge the plaintiff, and was not present when it was passed. There-was no sufficient showing made to disqualify the other members of the board of trustees from acting because of interest or bias. State ex rel. Starkweather v. Superior, 90 Wis. 612, 64 N. W. 304; State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 964. An order was made in the action requiring the plaintiff to give security for costs, which was complied with. It is. urged that the order is erroneous. No exception was taken thereto. No exception need be taken to an order that is properly a part of the judgment roll. Sec. 2872, Stats. (1898). All orders and papers in any way involving the-merits, au,d necessarily affecting the judgment, are properly a part of the judgment roll. Sec. 2898, Stats. (1898). On an appeal from a judgment, any intermediate order which involves the merits, and necessarily affects the judgment,, appearing upon the record transmitted, may be reviewed without exception. Sec. 3070, Stats. (1898). It is difficult to see how the order in question either involved the merits of the action or affected the judgment rendered therein, and if it did not it can be reviewed only on exception being-taken thereto. Donkle v. Milem, 88 Wis. 33, 59 N. W. 586. Had the plaintiff been unable to furnish the required security and had a judgment been entered dismissing his action for-that reason, an entirely different question would be presented. The fact that the plaintiff was able to furnish the required: security makes it self-evident that there was no abuse of discretion on the part of the trial court in making the order, and [636] in tbe absence of sucb abuse tbe order should not be reversed. Simanek v. Nemetz, 120 Wis. 42, 97 N. W. 508; Colbeth v. Colbeth, 117 Wis. 90, 93 N. W. 829; Cullen v. Hanisch, 114 Wis. 24, 89 N. W. 900; Joint School Dist. v. Kemen, 72 Wis. 179, 39 N. W. 131; Heeron v. Beckwith, 1 Wis. 17. Some other questions are treated in tbe briefs, but tbe ■conclusion we have reached renders discussion of them unnecessary. By the Court. — Judgment affirmed.