
    Otto S. Hirsch, Respondent, v. United States Grand Lodge of the Order Brith Abraham, Appellant.
    St. Louis Court of Appeals,
    January 24, 1899.
    1. Fraternal-Benevolent Association: practice, trial. In the case at bar, there can be no question that under the certificate, which contained an unconditional promise to pay, and the admission of the defendant that plaintiff was entitled prima faeie to a judgment; hence, the trial court correctly refused to direct the jury to find for the defendant.
    2. Practice, Appellate: verdict op jury. 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.
    
      Appeal from the St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.
    Aeeirmed.
    Theodore Rassieur for respondent.
    A peremptory instruction to find for defendant can not be given where the plaintiff’s case is supported by substantial evidence. Woods v. Ins. Co., 50 Mo. 112, 116; Kenney v. Railroad, 80 Mo. 573; Wolff v. Campbell, 110 Mo. 114, 120; Schroeder v. Railroad, 108 Mo. 321, 326; Gibson v. Zimmermann, 27 Mo. App. 90; Boone v. Railroad, 20 Mo. App. 232. Where the constitution of a corporation or benevolent order «provides that an amendment can only be adopted by the vote of least two thirds of the members present, a mere majority can not adopt such amendment. .Stock-dale v. School District, 47 Mich. 226.
    
      H. A. Loevy for appellant.
    Where the evidence is such that the court would be warranted in granting a new trial because in its opinion the verdict is for the wrong party, it should give a peremptory instruction. It is not only its right but its duty to do so. Hardin case, 83 Mo. 175; Powell case, 76 Mo. 80; Landis ease, 77 Mo. 554. “If, then, the trial court committed an error in submitting the case to the jury upon the facts as shown, has it erred in setting aside the verdict of the jury as rendered 1 This court has always held that it is a high and imperative duty * * * that the trial courts should never hesitate to exercise in the interest of fairness and honesty where verdicts have been brought about through bias, prejudice or partiality, miscalculation upon, or misunderstanding of the testimony, to grant new trials that injustice may be prevented and a literal veredictum be recorded.” * * * jf khe verdict was the result of either passion, prejudice or partiality, or the jury have shrunk from deciding the issues submitted to them, the court should interfere.” Lee v. Knapp, 137 Mo. 392. “If the evidence be such as to warrant the trial court in setting aside a verdict for the plaintiff as being unsupported by the evidence, it may properly sustain a demurrer to the evidence.” Mexico v. Jones, 27 Mo. App. 534. “The rule is now established that it is the function and duty of a trial court to direct a verdict in all eases where it would have been warranted in setting aside a verdict for the adverse party. Thompson on Trials, sec. 2250; 69 Mo. 469; 76 Mo. 80; 76 Mo. 86; 77 Mo. 554; 83-Mo. 175; 107 Mo. 653; 115 Mo. 588, £95; no Mo. 114; Barton v. Sitlington, 128 Mo. 167. “When the evidence is of that character that the trial judge would have a plain duty to perform in setting aside the verdict as unsupported by the ■evidence, it is his duty and prerogative to interfere before submission to the jury and direct a verdict for the defendant.” Jackson v. ITardin, 83 Mo. 175; Powell v. Railroad, 76 Mo. 80; Reickenbach v. Ellerbe, 115 Mo. 595; Hite v. Railway, 130 Mo. 141. “Tke verdict (in tke teetk of tke court’s instruction and tke evidence) must kave been tke fruit of an unreasoning sympathy by tke jury for tke bereaved widow. Suck a verdict can be accounted for only on tke ground of ignorance, partiality, prejudice or passion, and under tke repeated rulings of this court, can not be permitted to stand.” 107 Mo. 334; 96 Mo. 186; 94 Mo. 207; 92 Mo. 120; 87 Mo. 74. Entries in tke minutes made by officers of corporations are presumed to be true. 1 Beack, Priv. Corp., sec. 295, p. 487; Niblack, Ben. Soc., p. 95, sec. 46; Chase v. Tuttle, 55 Conn. 455; Van Prank case, 158 111. 565, reviewing all tke cases. Tke presumption omnia rita, etc., applies in favor of tke regularity and record of corporate meetings. 2 Beack, Priv. Corp., sec. 295, p. 487, and cases cited, note 4. It was for tke court to say whether tke word “majority” appearing in tke minutes as a component of tke contract, from tke evidence, meant merely a bare majority or a two third vote, or a sufficient number of votes. Whether assessments were made according to tke constitution and by-laws of a benefit society, is a question of law, which, being by a court left to a decision of tke jury, constitutes error. Bagley v. A. O. H. W., 131 Ind. 498. Whether a sum stipulated is a penalty or liquidated damage, is for tke court, not the jury. Marsh case, 103 Pa. St. 335. Tke rule extends to tke correct reading of the words as well as their meaning. Doyle case, 30 Mick. 159. Where tke ambiguity is in tke words of tke writing, tke court must determine tke meaning. Morrell case, 3 M. & W. 402. Whether tke amendment was properly adopted is a question of law for tke court, not of fact for tke jury. 19 Am. and Éng. Ency. of Law, 634; lb. 639, citing 12 Mo. App. 25; Searcy case, 39 Mo. App. 407; Golden case, 54 Mo. App. 100. “The rule that members are bound to take notice of by-laws, applies, although it is required by statute that all conditions of the policy shall be printed on its face.” Oom. v. Ins. Co., 112 Mass. 116. Even in case of fraud by its officers leading plaintiff to suppose that there was no such by-law. Ib. 112 Mass. 116. “A member can not assail an amendment as not adopted where it has been acted upon and enforced.” Curtis case, 9 Nev. 335. “A person whose rights in regard to the corporation are derived under its by-laws can not claim rights inconsistent with the by-laws on the theory that they are void.” College case, 5 Burr. 2761.
   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.  