Whiteside v. Supreme Conclave Improved Order of Heptasophs

82 F. 275, 1897 U.S. App. LEXIS 2744

• Court: U.S. Circuit Court for the District of Eastern Tennessee
• Decided: February 4, 1897
• Status: Published

Opinion

CLARK, District Judge

(after stating the facts). I have now considered the motion for a new trial in this case. The plaintiff's able and industrious attorneys, in the brief on this motion, have discussed the same questions which were considered on the trial, except that there has been a very full examination of the authorities, as the brief shows. There was, fortunately, but slight difference between the court and the defendant’s attorneys as to the law applicable to the case. This difference related solely to the question of the power of O’Donohue, the financial collector and officer of the. local order, to extend the time in which members might pay their assessment without exacting a forfeiture in case an assessment should not be paid on the precise date of its maturity. The argument was that the rules and by-laws of the order denied to Mr. O’Donohue this power. The court was of opinion that, applying to these orders the ordinary law of life insurance, Mr. O’Donohue might waive a provision of the kind named in the constitution and by-laws, and particularly when his action in this regard was supported by a long habit of doing so with members Avithout objection from any quarter; and the jury was instructed accordingly upon this point. I find nothing on this motion ■which has been sufficient to change my view of this. As was stated on the trial, 1 find the view which I hold upon this point, amply sustained by a recent opinion of the supreme court of Tennessee. The only other disagreement that existed, or now exists, in the case, is a disagreement between the defendant and the jury, and this relates to the facts, and relates to a point in respect of which there was a conflict in the testimony. This conflict Avas mainly between Y. S. Whiteside, a AA'itness for the plaintiff, and O’Donohue, witness for the defendant, and related to assessment No. 156. On January 31, 189(5. Hugh 'Whiteside Avrote a letter to Mr. O’Donohue, in which.were contained precisely the same statements made by Y. B. Whiteside on the AA’itness stand; and in his ansAver to that communication Mr'. O’Dono-hue did not deny a single statement in the letter. Bo that in this respect.Mr. Y. S. Whiteside is strongly corroborated. In addition to that, the proofs made it Arerv plain that Mr. O’Donolme Avas mistaken about a previous assessment, namely, No. 155, in regard to AA’hich he-was just as positive as he was in regard to No. 156; and Ihe records of the conclave, as far as any were kept, did not sustain Mr. O’Donohue’s testimony. I think the jury were well warranted in believing Avhat Mr. Whiteside said upon this subject. Indeed, I do not well see how they could have found otherwise upon this point of conflict.

There aauas no objection to the charge of the court as made to the jury, and the attention of one of the defendant’s attorneys was called to the fact of the necessity of making such objection at the time, if there existed any. It was within the peculiar province of the jury to pass upon the facts about which there was a conflict, and I do not perceive that there is anything in the case upon which I can disturb the verdict of the jury. Motion for a new trial is consequently overruled.