Cer Esia v. St. Giuseppe Mut. Aid Working Men's Ass'n

• Decision Date: 08 April 1919
• Docket Number: No. 15417.,15417.
• Citation: 211 S.W. 81
• Parties: CERESIA v. ST. GIUSEPPE MUT. AID WORKING MEN'S ASS'N.
• Court: Missouri Court of Appeals

211 S.W. 81

CERESIA v. ST. GIUSEPPE MUT. AID WORKING MEN'S ASS'N.

No. 15417.

St. Louis Court of Appeals. Missouri.

Argued and Submitted March 6, 1919.

Opinion Filed April 8, 1919.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

"Not to be officially published."

Action by Giuseppe Ceresia against the St. Giuseppe Mutual Aid Working Men's Association. From a judgment for plaintiff, defendant appeals. Affirmed.

Vincent McShane, John J. O'Brien, and C. V. Riccardi, all of St. Louis, for appellant. Louis B. Sher, of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff was a member of the defendant, the Mutual Aid Working Men's Association. According to its constitution and by-laws, it was organized, among other things, to assist the members and their families in case of sickness or death. Plaintiff became a member of the Association on December 4th, 1913. During the month of May he was reported to the society by its Physician as being ill. Under the advice of this physician plaintiff left the city of St. Louis about May 27th, 1914, and took up his residence in Italy, where he remained until May 2nd, 1915. Shortly thereafter he made demand on defendant for 6 months' sick benefit, from June 4th, 1914, until December 4th, 1914. During plaintiff's absence from St. Louis it appears that the defendant association had voted and paid him $35, this, as it is admitted, by way of a donation, and not by way of payment on any sick benefit. When plaintiff, on his return, demanded the payment of 6 months' sick benefit, it was refused, hence this suit.

Among other by-laws of the defendant, introduced in evidence, is one (No. 36) providing that after 6 months from the day of admission, a member, in case of illness proved by the society's physician, is entitled to a sick benefit for $5 a week, for 6 consecutive months.

Another article (No. 21) provides that an active member who takes up a temporary residence outside of St. Louis must duly notify the Board of Directors and send regularly to the financial secretary his monthly dues.

Another article (No. 22) provides that during his absence from St. Louis, a member is not entitled to the free attendance of the society's physician nor to the weekly sick benefit in case of sickness, as provided by article 26, but in case of death is entitled to a funeral benefit.

Another article (No. 41) provides that to obtain the benefit provided by the articles, a member must present to the Board of Directors a daily bulletin of the sickness,. compiled by the society's physician and signed by himself as well as by the members of the sick board of the society.

Another article (No. 44) provides that medical certificates issued by private physicians, but not countersigned by the society's physician, are valueless to the Board of Directors in granting and deciding on the sick benefit.

These are the material articles introduced although the whole constitution and by-laws were considered in evidence. Articles 36 and 32 were in the original articles, the constitution and by-laws being amended in 1913, and the others quoted, as well as articles 22 and 36, being in the latter.

From a judgment in favor of plaintiff, defendant has appealed, assigning as errors refusal of the court to give a peremptory instruction in favor of defendant or, more accurately, in failing to sustain a demurrer at the close of plaintiff's case and at the close of all the evidence in the case. It is also assigned as error that the trial court erred in giving each and every one of the instructions given at the request of plaintiff, and in giving an instruction at the request of plaintiff, as modified by the court, and in modifying the instruction requested by defendant and giving it as modified, and in refusing to give other instructions requested by defendant. Finally, that the verdict and judgment are against the evidence and against the weight of the evidence and against the law.

Considering these last, IL is sufficient to say that they amount to a challenge of the weight of the evidence, as has been decided in many cases. That is a matter with which we, as an appellate court, have no concern. If there is any substantial evidence in the case in favor of plaintiff, and there is no error in the instructions, the judgment must be affirmed.

Examining the evidence in the case, we find that as a matter of fact the plaintiff, afflicted with tuberculosis, left the city of St. Louis on the advice of defendant's physician, who duly certified that to the defendant, and went to Italy, where he remained for a considerable period of time, apparently paying his dues during all the period of his absence. While he was absent, his brother, by letter as it would seem, applied to the lodge for 6 months' sick benefit accrued, stating that he was still sick in Italy and under medical treatment there. The officers or its executive committee, it is not clear which, ordered that the plaintiff secure a certificate from a physician in Italy. The minutes of the meeting at which this order was made set out that there was a good deal to talk over the letter from plaintiff's brother, applying for the sick benefit, and that the Board of Directors, considering the article of the by-laws which provides that the Board or the society was not authorized to pay "any sickness to members out of the state unless they are signed by the Association Doctor, and the member on the committee of sickness," in referring to the brother's letter asking for the payment of the benefit, proceeds:

"We take the letter and invite P. Ceresia to produce to the Board of Directors a sickness certificate signed from the doctor which is curing this man in Italy, to get a paper where he asks for help, as it is in our society."

P. Ceresia was the brother of plaintiff.

It appears that a member present, a lawyer, and one of the directors, opposed this, saying that under their articles he was against the action. At any rate, it appears the Board or Society asked for this certificate, and plaintiff, who was then at Thermini, in Italy, being notified of the...