29 Mo. App. 337 | Mo. Ct. App. | 1888
delivered the opinion of the court.
This action was commenced before a justice of the peace for the purpose of recovering damages from the defendant, alleged to be a corporation, for expelling the plaintiff from the society without the preferring of charges, without notice, and without a hearing; and for refusing to allow him to exercise his rights and privileges as a member of the same. The defendant filed a written answer which was a general denial.
I. By appearing and answering in its corporate 'character, the allegation of the plaintiff that the defendant was a corporation was admitted. Seaton v. Railroad, 55 Mo. 416; Witthouse v. Railroad, 64 Mo. 523; Sappington v. Railroad, 14 Mo. App. 86; see, also, Barbaro v. Occidental Grove, 4 Mo. App. 429. This will dispose of the argument that the corporate character of the defendant was not proved.
II. The objection, that the statement filed before the justice is insufficient, need not be discussed. It sets out explicitly the injury for which the plaintiff sues,
III. At the trial in the circuit court, the plaintiff gave evidence tending to show that, at a meeting of the society, the names of the members were called out for the purpose of having them come forward to pay their dues, and his name was omitted; that, on demanding an explanation why this was done, he could get no satisfaction from the president of the society other than that he had been suspended for talking against the priest. He tendered his weekly dues to the president, who refused the same, not because he was not the proper officer to receive them, but on the ground that the plaintiff had been suspended and was not entitled to pay them. The plaintiff’s evidence also tended to show that thereafter he was denied his privileges of'membership in the society and denied an opportunity of inspecting its books. The defendant’s evidence conceded that the plaintiff was thus suspended from the society, and an attempt was made to justify it by the terms of the by-laws. The by-laws, which were put in evidence, confer no authority on the officers of the society thus to suspend a member without notice and without trial; nor would such a by-law, if it existed, be of any validity. The evidence shows that this was a mutual benefit society, having what is called a “sick benefit,” which we understand to be an allowance to members when they are sick. The plaintiff, therefore, had property rights in the society, and the society had no jurisdiction to deprive him of those rights by the arbitrary action which took place. Mulroy v. Supreme Lodge, 28 Mo. App. 463. The by-laws put in evidence recite certain grounds of expulsion, and then further recite: “In all these cases, the president makes a motion in a quarterly meeting, that, for the good of the society, such member may be expelled; and if the majority of votes consents to it, the member is ■expelled.” It does not appear that any such motion was ever made at a quarterly meeting, or that any such
IY. Complaint is made that the court refused an instruction offered by the defendant, and submitted the case to the jury upon the following instruction, drawn with the view of covering the whole case:
“If.the jury believe, from the evidence, that, before the beginning of this action (which was begun June 5, 1886), the plaintiff was deprived 'of any of the privileges of membership in the defendant society, by the action of the president of the society on behalf of said defendant society, then your verdict should be for plaintiff; but if you find from the evidence that plaintiff, before this action was brought, was not deprived of any of the benefits or privileges of membership in the said society by the action of any of its officers, then your verdict should be for the defendant.”
We think that, in the state of the evidence, this instruction covered the whole case, except the question of damages, and was, therefore, not erroneous. The instruction refused need not, therefore, be considered, further than to say that it was predicated upon the hypothesis that the plaintiff had been expelled for a violation of provisions of the constitution or by-laws, of which there was no evidence. The whole testimony shows that the action of the society in expelling the plaintiff was illegal, because had without notice, the preferring of charges, or an opportunity to be heard. The defendant’s evidence attempted to show that he had not been denied any privilege, had not been refused an inspection of the books, and that his sick benefit had not
V. The jury awarded the plaintiff one hundred dollars damages. The court required the remittitur of all except five dollars, which was done, and judgment was rendered for that amount. There was no explicit-evidence tending to show the amount of damages sustained by the plaintiff. The evidence showed that, down to the time when the plaintiff was thus suspended from the society, he had paid his dues and was entitled to what is called a “sick benefit.” There was no evidence from which any satisfactory conclusion could be reached as to the value of a deprivation of the social or other privileges of the society. The action was so arbitrary and illegal that it might have been a fair question for the jury whether the plaintiff was not entitled to exemplary damages; but the case was not submitted to the jury on this ground. We have some difficulty in saying that there was evidence which would sustain a verdict for more than nominal damages. But to require a further remibtitw would have the effect of throwing the costs of the appeal upon the plaintiff, in a case where it plainly appears that he has been the victim of wrong and outrage. We think that, under all the circumstances of the case, five dollars can scarcely be regarded as less than the measure of the injury which the plaintiff has suffered.
The judgment will be affirmed.
