Italian Soc. of Mut. Beneficence v. Vacarella

• Decision Date: 09 June 1936
• Docket Number: 6 Div. 25
• Citation: 170 So. 223,27 Ala.App. 233
• Parties: ITALIAN SOCIETY OF MUTUAL BENEFICENCE v. VACARELLA et al.
• Court: Alabama Court of Appeals

170 So. 223

27 Ala.App. 233

ITALIAN SOCIETY OF MUTUAL BENEFICENCE v. VACARELLA et al.

6 Div. 25

Court of Appeals of Alabama

June 9, 1936

Rehearing Denied June 30, 1936

Appeal from Intermediate Civil Court of Birmingham; W.A. Jenkins Judge.

Action in assumpsit by Sara Vacarella and others against the Italian Society of Mutual Beneficence, Umberto Di Savoia Principe Di Piemonte. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Certiorari denied by Supreme Court in Italian Society of Mutual Beneficence v. Vacarella (6 Div. 6) 170 So. 227.

J. Reese Murray and Ernest Matthews, both of Birmingham, for appellant.

James L. Permutt and A. Berkowitz, both of Birmingham, for appellees.

SAMFORD Judge.

In the year 1904 a charter was issued by the state of Alabama under the general law incorporating the Italian Society of Mutual Beneficence, Umberto Di Savoia Principe Di Piemonte.

The avowed aim of said society, after a listing of the names of several notable Italians, is stated to be: "Thankful of many glories and the mission to which Italy is called on to fulfill in the modern world, the Italians of Birmingham have formed an association, incorporated in accordance with the laws of their adopted country, under the historical name Umberto Di Savoia Principe Di Piemonte, for the scope of Mutual Beneficence and general education, where it can maintain alive and dear the sentiments of Religion and Country, adopting the following By-Laws and Regulations."

Among said by-laws is to be found section A providing for a monthly due of $1 in advance, a mortuary fee of $1.50, and other fees not necessary here to mention, also article 30 of the by-laws, which provides that all the articles of the by-laws can be annulled or amended as therein provided.

In November, 1906, Santo Vacarella became a member of said society, and twenty years thereafter received from said society, duly signed, a certificate of life membership entitling him to certain benefits hereinafter to be adverted to in connection with the by-laws of the society subsequently adopted.

Subsequent to the incorporation, and while plaintiff's intestate was a member in good standing and during, to wit, the year 1917, the by-laws of the society were amended so as to provide: "Section G: At the death of a member his legal heirs shall be entitled to the following benefits: (a) $1.50 for every member on the roster of the Society. (b) $100.00 as a contribution, which shall be appropriated from the fund of the Society, for funeral expenses. (c) The President or any acting for him shall send and have placed on the casket of the defunct member, a wreath of flowers to the value of $10.00, the expense of which shall be absorbed by the Society." Also the by-laws were amended by the addition of "Section L. Any member who should die shall have right to burial in the cemetery of the Society," etc.

At the same time there was adopted as a part of the by-laws "Article 8. A member who has belonged to the Society twenty years uninterruptedly, and who, at the expiration of this period, is in good standing with the Society, shall be, from this date on, exempted from payment of the monthly dues during the rest of his life," and also "Section B. If a member, as a result of an illness or disability, should become absolutely disabled to gain a livelihood, he shall be entitled to a monthly benefit, for life, of $15.00 per month, and shall also be exempted from paying all dues."

In 1920 or 1921, and while these by-laws were in full force and effect, plaintiff's intestate, Santo Vacarella, became totally blind, and thereby was rendered totally disabled to gain a livelihood. This disability and the obligations resting upon the society were recognized, and plaintiff's intestate was paid by the society the $15 per month disability benefit until some time in 1933, when, by regular proposals and in regular meeting, the by-laws of the society were amended, abolishing the $15 a month disability benefit, and also requiring members holding life certificates, for having completed a 20-year continuous term of membership, to pay dues and fees just as other members of the society were required to do, and providing: "The said member, however, is accorded a special privilege, in the sense that he does not lose his rights to death benefits, provided he does not owe a debt debited to his account over a period of twelve months. In such case, in the event of death, he shall receive only funeral accompaniment, a grave in the Social Cemetery and a wreath of flowers customarily given to defunct members."

It is admitted that plaintiff's intestate, according to the last amended by-laws, was indebted to the society for dues and assessments for more than 12 months, and, if said amendments are valid and binding upon plaintiff's intestate, then, having received the wreath and the permit of burial, he is entitled to nothing. If, however, the society was not authorized or empowered under the law to change the by-laws affecting its obligations to plaintiff's intestate, then the plaintiffs here, as the heirs of Santo Vacarella, would be entitled to recover the $100 from the general fund of the society and $1.50 for every member on the roster of the society at the time of his death. Plaintiff's intestate died in November, 1935, of which fact the defendant has had notice.

Whatever may have been the original purpose of the society, its charter was broad enough to authorize the amendments adopted in 1917, creating certain obligations therein named on the part of defendant and in favor of each individual member of the society, and it is equally clear that these amendments were adopted by the society in accordance with its charter and by-laws. Therefore it is equally evident that, unless the by-laws adopted in 1917 have been changed in such manner as to preclude a recovery on the part of plaintiff's intestate, the obligations would continue as to him whatever may be the result with reference to other members of the society differently situated.

In other words, a voluntary mutual beneficial society, such as the defendant is, would have a right to change or amend its by-laws relating to the conduct and management of the affairs of the society at any time it saw fit, subject,...