Societa Unione Fratellanza Italiana v. Leyden

• Decision Date: 08 January 1917
• Citation: 225 Mass. 540,114 N.E. 738
• Parties: SOCIETA UNIONE FRATELLANZA ITALIANA v. LEYDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 540

114 N.E. 738

SOCIETA UNIONE FRATELLANZA ITALIANA

v.LEYDEN.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 8, 1917.

Report from Superior Court, Hampden County; Henry A. King, Judge.

Action by the Societa Unione Fratellanza Italiana against Edward J. Leyden. Verdict was directed for plaintiff, and case reported. Judgment on verdict.

Silvio Martinelli and W. G. Brownson, both of Springfield, for plaintiff.

Leary, Cummings & Leary and David E. Lavigne, all of Springfield, for defendant.

LORING, J.

This is an action against a deputy sheriff for a false return. The facts were these: One Teresa Fortini sued out a writ against the plaintiff corporation and committed it to the defendant for service. The defendant served on a stranger and made return that he had served upon the corporation. The result was that the plaintiff corporation was defaulted, the case went to judgment, and the sum of $300 damages and $8.40 costs was collected by Teresa from a savings bank which had been summoned as trustee in the original action. The original action was brought to recover mortuary dues to which Teresa was entitled if her husband was a member of the plaintiff corporation on the day of his death. The sheriff contended that on the evidence introduced by him the jury were warranted in finding that Teresa's husband was a member in good standing at that time. If he was the damages suffered by the plaintiff by reason of the false return were nominal. If he was not the damages suffered by the plaintiff corporation amount to the sum collected by Teresa on execution. The judge directed the jury to find a verdict for the plaintiff for the amount collected on execution and reported the case to this court ‘with the stipulation that, if this direction was right, judgment is to be entered upon the verdict; otherwise judgment is to be entered for the plaintiff in the nominal damages of one dollar.’

At the trial the sheriff admitted that he was liable. On this admission the judge was right in directing a verdict for the plaintiff in some sum. He admitted further that the plaintiff was entitled to recover the sum collected on execution in the original action unless on the evidence introduced by him (the defendant) the jury could have found that the husband of Teresa was a member in good standing at the time of his death. This authorized the direction of a verdict in the sum for which the verdict was rendered if on the evidence the jury were not warranted in finding that the husband was a member in good standing at the time in question. The judge in effect ruled that the jury were not warranted in finding that the husband was a member in good standing on the day of his death. The correctness of that ruling is the question now before us.

The facts put in evidence by the sheriff on which he contended that the jury could find that the husband of Teresa was a member in good standing at the time of his death were as follows: The husband left the United States for Italy on March 2, 1911. At that time he was a member in good standing. The Constitution of the plaintiff corporation provides that any member leaving the United States shall have neither the rights nor the duties of a member during his absence. It further provides that on returning to the United States he can be readmitted to membership provided within one month of his arrival in this country he presents to the secretary of the corporation ‘a certificate from the society's physician, declaring him to be physically and mentally sound and readmissible.’ Teresa's husband returned to the United States on May 2, 1911. On May 5, 1911, he went to the office of the society's physician and obtained from him the following certificate:

‘This is to certify that I have examined Mr. Luigi Fortini, and find him still sick with indigestion, but improving.’

On the evening of that day this certificate was presented to a meeting of the plaintiff corporation at which a quorum was present and the corporation in effect voted or the jury were warranted in finding that the corporation in effect voted to readmit the husband. Thereafter he paid his dues for May and the five succeeding months. These dues have never been returned. At a meeting of the plaintiff corporation held in November, 1911, a member called to the attention of the meeting the fact that Luigi had never become a member because he had failed to produce the proper certificate from the society's physician. The president was about to put to vote the question whether Luigi was or was not a member when the member in question took the position that such a vote was unnecessary. Thereupon the president adopted that position and ordered the corresponding secretary to notify Luigi that he was not a member of the society. Thereafter the corporation struck off his name from the list of members and refused to accept any dues from him, although monthly dues were regularly tendered by him until the day of his death. He died in April, 1912.

We take up first the question whether the certificate presented by Teresa's husband was or could have been accepted by the corporation as a compliance with this provision of the constitution. We assume that the certificate could be accepted as a compliance with the constitutional provision if it complied with it in substance. Did it? What the corporation's physician certified to was that the husband is ‘still sick with indigestion, but improving.’ Indigestion is a neutral term. Some forms of indigestion are compatible with the person in question being physically and mentally sound. Other forms of indigestion are not compatible with that. Indigestion may mean that for temporary functional reasons a man's food does not agree with him. But indigestion may be the manifestation of disease which would render the patient physically unsound. Indigestion sometimes spells cancer; sometimes peritonitis or appendicitis; and sometimes gastric ulcers. The physician of the corporation went no further than to certify that Teresa's husband was suffering from indigestion. Which kind of indigestion he was suffering from the physician did not state. We take the question as it stood when the certificate was presented without regard to the fact that a month later an operation was performed on the husband for cancer of the stomach. Possibly what we have just said as to indigestion goes beyond the judicial knowledge of the court. However that may be, we are of opinion that a certificatethat a man is ‘still sick with indigestion’ is not equivalent to a certificate that he is ‘physically and mentally sound’ and cannot be accepted as such.

The other contention put forward by the defendant is that the plaintiff corporation has waived its right to require the certificate called for by the constitution as a condition of readmission and that it is now estopped to set up that defense. He bases that contention on the action of the members of the corporation at the meeting of May 5 (in effect undertaking to readmit Teresa's husband to membership) and on the acceptance and retention of the dues paid by him for that and the succeeding five months. He relies on these as acts of the corporation as distinguished from acts of its officers. He concedes on the authority of Burbank v. Boston Police Relief Ass'n, 144 Mass. 434, 11 N. E. 691,McCoy v. Roman Catholic Mutual Ins. Co., 152 Mass. 272, 25 N. E. 289, and Lyon v. Royal Society of Good Fellows, 153 Mass. 83, 26 N. E. 236, that the provision of the constitution here in question (requiring the physician's certificate as a condition of readmission) could not have been waived by the officers of the corporation. But he contends that it can be and was waived by the corporation itself and that where pursuant to action by the corporation itself monthly dues are received and retained by it a waiver and estoppel comes into existence which prevents the corporation setting up noncompliance with such a provision of the constitution. That is a question which was left open in Burbank v. Boston Police Relief Ass'n, ubi supra, 144 Mass. at p. 437, 11 N. E. 691, and in Lyon v. Royal Society of Good Fellows, ubi supra,...