Garofalo v. Societa Operaia Di Mutuo Soccorso, Etc.

• Decision Date: 01 February 1938
• Docket Number: No. 24297.,24297.
• Citation: 112 S.W.2d 934
• Parties: GAROFALO v. SOCIETA OPERAIA DI MUTUO SOCCORSO ST. GIUSEPPE.
• Court: Missouri Court of Appeals

112 S.W.2d 934

GAROFALO v. SOCIETA OPERAIA DI MUTUO SOCCORSO ST. GIUSEPPE.

No. 24297.

St. Louis Court of Appeals. Missouri.

February 1, 1938.

Rehearing Denied February 16, 1938.

Appeal from St. Louis Circuit Court, Division No. 9; Arthur H. Bader, Judge.

"Not to be published in State Reports."

Suit by Antonina Garofalo against the Societa Operaia Di Mutuo Soccorso St. Giuseppe to recover death benefits allegedly due because of the death of her husband, and sick benefits. From a judgment in favor of the plaintiff on both counts, the defendant appeals.

Judgment affirmed as to first count and reversed as to second count.

Joseph B. Catanzaro and John P. Griffin, both of St. Louis, for appellant.

Anthony Canzoneri, of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This suit was begun in the circuit court of the city of St. Louis on the_____day of November, 1934. The amended petition on which the case was tried consisted of two counts.

Count No. 1 set out in substance the following: That the defendant is a corporation organized under the laws of Missouri relating to benevolent, religious, scientific, fraternal-beneficial, educational, miscellaneous associations, and that she was the wife, and now the widow, of Salvatore Garofalo, who died on June 5, 1934; that on August 1, 1918, he became a member in good standing of the defendant association, whereby, in consideration of the representations contained in his application for membership, etc., and the payment of $1 per month dues, the defendant promised to pay to plaintiff, upon the death of her husband, the sum of $500 in order to provide a suitable funeral for him as set out in its constitution and by-laws, particularly article 48 of same, which is as follows: "At the death of one of its members the society shall hand to the wife, son or sons or parents of the same, or in the hands of some other person that the member may have appointed for that purpose in the admission certificate, the sum of $500.00, in order to provide a suitable funeral for same"; that her said husband complied with all the laws governing the defendant organization and made all payments required by it and was in good standing in it at the time of his death; that she complied with all the requirements of said organization by giving due notice and proof of death and demanded the payment of said sum of $500, which payment was refused; that she prayed for judgment for said sum together with 6 per cent. interest from the date of her husband's death, to wit, June 5, 1934, and costs.

Count No. 2 contained similar allegations as count No. 1, and sought to recover for certain sick benefits accruing between the 30th day of April, 1934, and the 23d day of May, 1934, by reason of her husband having suffered with bronchitis between those dates. (The sick benefits were payable to the member, under the by-laws of defendant organization.)

The defendant, in an amended answer, admitted its incorporation and that it was organized under the laws of Missouri as stated in plaintiff's petition; admitted that Salvatore Garofalo became a member of its society on August 1, 1918, paid the prescribed monthly dues (which were $1 per month), including the payment due February 4, 1934, but denied that he complied with the rules and regulations of the society, and averred that he failed to pay at that time his monthly dues and became delinquent in three monthly payments and that, in accord with the provisions of the by-laws, rules, and regulations of the society, he was suspended for said delinquency, thereby forfeiting his rights to any benefits by reason of said suspension, in particular benefits as provided in article 48; that article 108 of its by-laws reads as follows: "Suspension brings with it the loss of rights granted to the members in Articles 35, 36, 37 and 48, excepting the free visits of the Society's physician, as per Article 30, and excepting what has been prescribed in Article 51 for willing contribution of the Society towards the funeral expenses"; that on June 5, 1934, the day of the member's death, he was not in good standing of the society, but, in fact, was still under suspension for failure to comply with the rules and regulations of the society and is not entitled to death benefits as prayed for.

Similar averments were made in respect to count No. 2 of plaintiff's petition.

Plaintiff's reply contained an admission that her husband became a member of the society on August 1, 1918, but contained a denial that he became delinquent as to three monthly payments as stated in defendant's answer and further alleged that her husband had paid his dues up to and including June, 1934, and also denied defendant's averment that her husband was not a member in good standing at the time of his death, June 5, 1934.

Upon the trial, which was concluded on the 17th day of October, 1935, the jury returned a verdict in favor of plaintiff for the sum of $500, with interest thereon aggregating the sum of $541.25, and also found on the second count in favor of the plaintiff for the sum of $15 with interest, aggregating the sum of $16.25; upon which verdict judgment was rendered, and, after an ineffective motion for a new trial, the defendant brings the cause to this court for review.

The testimony disclosed that the membership of defendant organization is composed of Italians and that all of the records and minute books were written in Italian and it was necessary at the trial to have an interpreter to transcribe the matters in issue and to interpret the testimony of certain Italian witnesses into English.

It was conceded by officers of the Italian society that there was nothing in the constitution and by-laws which required the payment of dues in advance, but that it was the custom for them to be so paid in advance. It was shown that the dues were payable at the regular meeting on the first Sunday of each month and that, after a member became in arrears for three months successively, the officers would suspend the member for two months.

It was claimed by defendant's officers that the dues of the deceased member for January, 1934, were paid on March 4, 1934, and that the dues for the month of February were paid in March, 1934, also; that the dues for the months of March, April, May and June, 1934, were all paid on June 3, 1934, such total payment amounting to $4, or $1 for each of the four months; that the custom was that, after a member had been delinquent in payment for three months and had been suspended, the secretary would send him a letter notifying him that he had been suspended and, if he did not come in at the next regular meeting to pay his dues, that he would be canceled off of the roll and would cease to be a member.

The vice secretary, Salvatore Fanara, testified that his duties were to send postcards every month to the members owing three months' payment to the society; that it was a form letter and advised the member, "If you don't come to the next meeting you are going to be suspended"; that he sent this notice to Salvatore Garofalo about the end of the month of April; that it was mailed to him about four or five days before the meeting of May 6.

Bernardo Favoloro, the secretary of finance, of defendant, testified that he collected the dues when the members came in and paid, and further testified that his ledger and stamp showed that the member Salvatore Garofalo paid in March for January and February, 1934, and the record didn't show that he made any payment in April or May, and that was why he was suspended; that they collected dues when they met on the first Sunday of each month.

The record being shown to witness, he testified as follows: "The book shows that on June 3rd he came in and paid four months' dues. He made the payments for the months of March, April, May and June. He came in June 3rd. I don't mean he came in, I wasn't present, and I don't remember who paid them."

This witness' cross-examination reads as follows: "Payment came in the month of June and was paid for March, April, May and June. I was the secretary when these by-laws were established. (Reading Article 98): `Any member who for three months has not paid his monthly dues to the Society's treasurer, shall be notified by letter that he is in arrears; should he then not put himself in good standing, he shall be suspended for two months. And if after this he still continues in arrears of four months, he shall by resolution of the Board of Directors be cancelled from the list of members.' When a man doesn't pay three months, they send him a letter.

"Q. Then your organization sends him a letter? A. Before the third month starts they send him a letter and if he don't come to pay, he will be suspended.

"Q. They send him a letter on the second month, is that right? A. At the end of the second month."

The plaintiff testified that her husband, Salvatore Garofalo, was at the city hospital four days and died there on June 5, 1934; that her husband was not four months behind in his dues on June 3rd, 1934, at the time she paid $4 to the society, which covered four months' dues; that this payment was made by her on the Sunday before he died; that she had no knowledge at any time that her husband had been suspended; that defendant would not give her any money; that they knew he was sick when they took him to the hospital.

The corresponding secretary, Ezio Nardoni, testified that the member Salvatore Garofalo was suspended on May 20, 1934, for two months for being in arrears three months; that form letters were sent out to such members (witness was shown Exhibit 3); that Exhibit 3 was such a form letter (Exhibit 3, however, does not appear in the abstract of the record before us); that it was the secretary's duty to mail those form letters; that he (witness) did not do that; that he sent the form letter notifying member Garofalo of his suspension and that if he did not come in at the next meeting and pay his dues he w...