Hirsch v. United States Grand Lodge of the Order Brith Abraham , 78 Mo. App. 358 ( 1899 )

BIGGS, J.-

-There was a judgment for the plaintiff in this case. It is the contention of the defendant on this appeal that the circuit court committed error in refusing to direct a verdict for it. The plaintiff contends that under his evidence and the admissions of defendant he made out a prima facie case. If he is right in this the assignment must be overruled. Wood v. Ins. Co., 50 Mo. 112; Kenney v. Railroad, 80 Mo. 573; Wolf v. Campbell, 110 Mo. 114; Hite v. Railroad, 130 Mo. 132; Boone v. Railroad, 20 Mo. App. 232; Herriman v. Railroad, 27 Mo. App. loc. cit. 443; Gibson v. Zimmerman, 27 Mo. App. 90. The law is thus stated by Judge Philips in the Boone case: “When the plaintiff has made out a prima facie case, although the defendant may introduce evidence which entirely overthrows and disproves the prima facie, case of the plaintiff, the trial court can not say as a matter of law that it is so overthrown, and direct a verdict for tha defendant. The credibility of the witnesses and the weight of the evidence are peculiarly matters for the jury. The plaintiff is entitled to have the judgment of the jury on the credibility of the witnesses produced by defendant, and the value of their testimony.” Hence in disposing of the assignment we need only inquire if the plaintiff’s evidence made a prima facie case, for if so-it can make no difference to wkat extent his case may have been disproved.

The plaintiff is a member of the defendant order, which is a benevolent society with an insurance feature. By the terms of the benefit certificate issued to plaintiff the defendant agreed to pay him $500 upon the death of bis wife, provided be was at the time of ber death a member of the society in good standing. the defendant refused to pay the money, and the plaintiff brought this suit -to recover it. the defense is that under an amendment to the constitution of the society, which defendant claims was adopted in 1888, the plaintiff was not entitled to the money for the reason that be bad not been a member of the order for six months next prior to the death of bis wife. the plaintiff denied that such an amendment had been adopted. At the trial the plaintiff read in evidence the certificate, wbicb contained an unconditional promise to pay upon the death of plaintiff’s wife. the defendant admitted that the plaintiff was then and at all times bad been a member of the order in good standing, and it also admitted the death of plaintiff’s wife, and that plaintiff bad furnished proofs of ber death as required by the laws of the society. Thereupon plaintiff rested bis case. There can be no question that under the certificate and admission of the defendant, the plaintiff was entitled prima facie to a judgment. the certificate contained an unconditional promise to pay. It is useless, as we bave said, to discuss in this connection the oral evidence in support of the passage of the alleged constitutional amendment, wbicb amendment if it bad been adopted bad the effect of making this promise a conditional one. It suffices to say that the record of the Grand Lodge, concerning the adoption of the amendment failed to show that it was adopted by the requisite two thirds vote. Hence the record was not, as counsel argues, conclusive evidence against the plaintiff as to the adoption of the amendment. Indeed the record furnishes no evidence whatever of the controverted fact. It only recites that the amendment received a majority of the votes cast, whereas the constitution provides that a vote of two thirds is requisite to the adoption of amendments to the organic law. Hence we rule that the circuit court was right in refusing to direct the jury to find for the defendant.

The nest assignment is that the verdict of the jury was the result of passion or prejudice, and that for this reason the court ought to set aside the judgment. It would seem to be logical that the same reasons which prevent a trial court from directing a verdict for defendant, where the plaintiff has made a prima facie case, ought to operate to prevent an appellate court from interfering upon the ground, that the verdict, although in accordance with the prima facie showing, was the result of passion or prejudice. It is only when the record is against all of the reasonable probabilities, the entire evidence being considered, that an appellate court is authorized to conclude that the finding was the result of mistake, passion or prejudice. How can such a conclusion be reached when the finding is in accordance with a prima facie showing ? In the case at bar the plaintiff offers the certificate which was issued four years after the vote was taken on the alleged amendment. The certificate makes no mention of the amendment and contains no limitation in conformity to it. The promise therein is absolute to pay plaintiff $500 at the death of his wife. It must be borne in mind that the record of the Grand Lodge does not show that the amendment was adopted by a vote of two thirds. It merely states that it received a majority of the votes cast. Tt is obvious that we would not be warranted in ordering a new trial in this case. The finding may have been opposed to the weight of the evidence, but with that we have no concern. The circuit court was of that opinion and granted one new trial on that ground. The defendant is concluded by the second verdict.

There are other questions presented in the briefs, but they are matters of no consequence. Under the pleadings and evidence there was a single question of fact upon which the entire case hinged, that is whether the alleged amendment had been adopted by the requisite vote. This issue was properly submitted by the instructions. The verdict was against the defendant, and the judgment thereon ought to be affirmed. It is so ordered.

All concur.