192 Mo. 588 | Mo. | 1906
Respondent, the Bohemian Roman Catholic Central Union, U. S. A., may be abbreviated to the “Union,” and is a parent body incorporated under our state laws pertaining to benevolent, scientific, educational and miscellaneous associations (art. 11, chap. 12, R. S. 1899), having for its object to foster the practice of religious duties among its members, to unite Bohemian Roman Catholic societies in works of charity and benevolence, to assist societies in giving aid and assistance to its members, to nurse its sick and bury its dead, and to provide a fund for the benefit of its members’ widows and orphans.
Respondent, the Local Society No. 63 of the City of St. Louis of the Bohemian Roman Catholic First Central Union, U. S. A., may be abbreviated into the ‘ ‘ Society, ’ ’ and is a subordinate branch or lodge of the Union, alleged by appellant to be incorporated, and alleged by respondents to be not a body corporate.
At a certain time he was tried and expelled from the Union and the Society, on charges preferred by a committee composed of one Klasek, one Babka, one Jansky, one Cibulka and one Stys — also parties to this litigation. Thereupon he sued out a writ of mandamus in the circuit court of the city of St. Louis against the Union and the Society, and having for its purpose to be reinstated as a member thereof and in his insurance, sick and other benefits, forfeited by his expulsion. Being cast in the mandamus suit, judgment was rendered for the Union and the Society, and such judgment remained in full vigor.
Thereupon Matousek instituted the present action against the Union, the Society, and the said members of said committee by name, for damages, alleging in substance that the members of said committee, Klasek et ah, were actuated by malice and conspired together for the purpose of injuring him, and that the Union and the Society participated in such malice; that because of said purpose and acts resulting in his wrongful expulsion, he was deprived of the advantage of his insurance policies, his social advantages and sick benefits ; and that he was now too old to secure similar insurance and had suffered loss by said wrongs in the sum of $5,000 actual, and $5,000 punitive, damages.
The case is presented to us by appellant’s counsel on the theory that the finding as to the members of the committee and the rulings of the court on the evi dence relating to said committee were all right. It will, therefore, not be necessary to state or consider the pleadings, the evidence or the court’s rulings pertaining
The Society and the Union filed a joint answer, thereby interposing two defenses. The first defense was, in legal effect, a denial of the allegations in the petition, coupled with averments the converse of those made by plaintiff, in that, defendants say, Matousek on offering himself for initiation, promised, and on initiation, obligated himself, to obey the by-laws and regulations of the Union and Society; that one of the bylaws of the Union denounced expulsion as a penalty against any member who abused and slandered the Union and by such dishonorable practices injured its reputation; that plaintiff disobeyed such by-law by slandering and abusing the Union and injuring it, and, in consequence thereof, a written complaint was lodged against him in October, 1901, and he was served with a copy and notified to appear at a meeting of the Society to be holden on November 10th, at 1:30 p. m.; that he did appear in person and was regularly tried, participating therein, and, by ballot of two-thirds of the members present, was found guilty of the charges, and expelled in accordance with the by-laws and rules, and deprived of all rights and benefits of said Union and Society; that thereafter he appealed to the parent Union from the decision of the subordinate Society, and the action of the Society in expelling him was affirmed in accordance with the by-laws regulating, appeals ; and that the Union and Society had jurisdiction of Matousek, as a member, as well as of the subject-matter of said hearing and were the proper and only tribunals for the consideration and determination of the matter involved in the complaint, and that their action in said matter is, therefore, final and binding on the plaintiff.
Second, the answer pleaded res judicata, as follows:
“And, as a further defense to this action, these*593 defendants state that heretofore on or about the 14th day of January, 1902, after the plaintiff had been expelled as aforesaid from his membership in said Society and Union, and after the said action was so affirmed by the said Bohemian Roman Catholic First Central Union, U. S. A., of which he now complains, he brought a mandamus proceeding or action against these defendants in the circuit court of the city of St. Louis, entitled State ex rel. Francis Matousek v. Bohemian Roman Catholic First Central Union, U. S. A., and Local Society No. 63 of the City of St. Louis of the Bohemian Roman Catholic First Central Union, U. S. A., numbered 22847 A, Room 3, of the files of this Court; that the object of said suit was by mandamus to restore to plaintiff his membership in said Local Society No. 63 and in said Union, together with all the rights and benefits of such membership', of which he now again complains he has been wrongfully deprived; that in the said action, these defendants as respondents, in due time filed their return; that the matters and things involved in said last-named cause are the same now embraced in plaintiff’s present action; that thereafter, to-wit, on February 18, 1902, the said court rendered judgment in said cause in favor of these defendants and against plaintiff, which said judgment has never been vacated, set aside or appealed from, and is therefore final and binding on plaintiff. Wherefore, having fully answered, these defendants pray to be hence dismissed with their costs.”
The replication was a general denial.
The cause being tried to the court without a jury, at the end of plaintiff’s case the court stated that he would give plaintiff the option of a verdict against him or a nonsuit. Plaintiff elected to take his defeat in the form of a verdict, whereupon a peremptory instruction in the nature of a demurrer to the evidence was given
The whole force of appellant’s brief in chief and in reply is directed to one major insistence, to-wit, that the court erred in dealing with respondents’ affirmative plea of res judicata,, the contention being that the defense of res judicata was allowed by the court below in the teeth of the fact that respondents introduced no evidence to sustain such plea, nor did appellant introduce the record sustaining such plea, nor does the bill of exceptions contain the record establishing such plea. The issue here, then, is narrowed by 'appellant to one wherein error is assigned because the trial court sustained the plea of res judicata, without proof.
May error be necessarily predicated in this case on such contention? We think not; because the issues on the foregoing pleadings, summarized, may be stated thus: (1) A charge of an unfair, illegal and malicious lodge trial and a wrongful, expulsion of a member resulting — in which the onus probandi was on plaintiff. (2) A plea of res judicata as a defense, and herein the onus probandi was on defendants. Now, reduced to a simple logical formula, the situation stood this way: if plaintiff sustained the first issue and defendants sustained the second, the result would he a judgment for defendants, because the defense avoided the effect of plaintiff’s proof. If, on the other hand, plaintiff sustained the first issue and defendants failed on the second, the result would be a judgment for the plaintiff. If, however, plaintiff failed on the first issue, then the second became immaterial, because no defense was necessary and the case fell to the ground of its own weight. Hence, it only becomes necessary to consider the plea of res judicata after considering and disposing of the first plea.
The vice of the position taken by the learned counsel for appellant, it would seem, is in assuming that plaintiff sustained the first plea, for by that assump
In fine, we cannot find that the allegation of an illegal, unfair or malicious lodge trial and expulsion was sustained. So that, with nothing more, on the simple proposition that plaintiff failed to make out his case the judgment should remain undisturbed.
But if it be conceded, in the unsatisfactory record before us, that such allegation was sustained by at least prima-facie proof, and if it be conceded, furthermore, that such proof called for the establishment of the plea of res judicata before respondents, the Union and the Society, stood acquit, yet we are not satisfied that ap
Our conclusion is, therefore, that the record shows by indirection, but conclusively, that the case was tried
It is not necessary to cite authorities to sustain the proposition that positions, once taken and acted on, may not be thus- reversed and turned topsy-turvy. Such bouleversement (to timidly borrow a word respectably introduced to this court in another ease by a counselor learned in linguistics and glossology) has no place in the practical science of jurisprudence.
Finding no error, the judgment is affirmed.