192 S.W. 1095 | Tex. App. | 1917
Of course it is not contended that the Brotherhood had either a right or power to expel appellee for testifying as a witness in the Bolton Case. On the contrary, appellants concede, as we understand them, that if appellee was expelled on that ground alone the action of the Brotherhood was a nullity.
The contention is that the court erred in rendering judgment against appellant because the jury found that appellee was not expelled on that ground alone, but also on the ground that he signed with Nichols the letter the latter wrote to Mrs. Pennyman. If the finding of the jury that appellee was expelled for signing the Pennyman letter should alone be looked to in determining the contention, it should be sustained, notwithstanding it appears therefrom that appellee also was expelled for testifying as a witness in the Bolton Case. For the Supreme Court, on a former appeal of the cause, reported in
"in good faith fairly and honestly passed upon the testimony submitted to them and found Thompson guilty of violating his obligation, or the constitution and laws of the order, then their action would be final and conclusive of the matter, and the plaintiff could not recover in this case because of his expulsion from that order, nor for any of the consequences flowing from it, although they may have found him guilty on the second charge also."
But, in determining the contention, that finding must be considered in connection with the one following it, to wit, that the members of the Brotherhood who voted to expel appellee did not do so in good faith and in fairness toward him,
"believing and holding that the signing with Nichols of the letter to Mrs. Pennyman, under the circumstances attending it, constituted unbecoming conduct or a violation of the obligation under the constitution and laws of the order."
The finding just set out means, we think, that the members who voted to expel appellee for signing the Pennyman letter "believed" and "held," when they did so, that his act in signing it was not such "unbecoming conduct" or such "a violation of his obligation" as a member of the order as authorized his expulsion. If they so "believed" and "held," then it is plain that they did not in fact expel him for that, but merely used it as a pretext to conceal the real ground on which they expelled him. The two findings construed together we think bring the case within a rule which the Supreme Court, on the former appeal above referred to, stated as follows:
"If, * * * the members of that order did not act in good faith and did not exercise their honest judgment in coming to the conclusion that by writing the Pennyman letter Thompson was guilty of a violation of his obligation or the constitution and laws of the order, but used it as a pretext by which to expel him on account of the second charge made against him, then their action would be void and Thompson would be entitled to recover."
We do not agree that the court, in the sixth question submitted to the jury, assumed that appellee was entitled to a recovery against appellants of exemplary damages. Reasonably, the jury must have understood that before they were authorized to award appellee such damages they must find that he was wrongfully expelled from the Brotherhood and without just cause or excuse for his expulsion.
On a former appeal of the cause it was insisted that the judgment against appellant St. Louis Southwestern Railway Company, in so far as it was for exemplary damages, was grossly excessive. On that appeal the judgment against said appellant was for $500 as actual damages, as it is on this appeal, and for $2,000 as exemplary damages, while on this one it is for only $1,250 as exemplary damages. On said former appeal it was held by the Court of Civil Appeals that the judgment was not excessive as claimed. 108 S.W. 457. The judgment for exemplary damages against said appellant on this appeal being for $750 less than the sum held on the former appeal not to be excessive, we do not think the contention presented by the sixth assignment that it is for an excessive amount as exemplary damages should be sustained. The argument advanced in support of that assignment, that the finding in appellee's favor against each of the individuals sued was for the sum of only $50 as exemplary damages showed that the jury was moved by improper motives to find the sum they did against the appellant railway company, is not believed to be tenable. The jury might have believed from the testimony that the course pursued by appellant through its manager Green induced the individual appellants to act as they did, and therefore that it was more blamable than they were for the wrong done appellee.
Appellant Grand International Brotherhood requested the court to peremptorily charge the jury to find in its favor, on the ground that it was
"not a corporation, joint-stock association or partnership, but was a voluntary association or society composed of individuals not made parties to this suit,"
and complains of the refusal of the court to give the requested charge. It appeared that said appellant was an unincorporated association doing business in this state through its divisions, one of which was the division from which appellee was expelled. As the statute (article 6149, Vernon's Statutes) authorized a suit to be maintained in the courts of this state against such an association, it is clear that the court did not err when he refused on the ground assigned to instruct the jury as requested. We need not inquire whether said appellant was entitled *1098
on other grounds to have the jury so instructed. San Antonio Traction Co. v. Emerson,
The judgment is affirmed.
