15 A. 885 (Pa. 1888), 41, Baltimore & Ohio Employes' Relief Ass'n v. Post

Docket Nº:41
Citation:15 A. 885, 122 Pa. 579
Opinion Judge:JUSTICE PAXSON
Party Name:B. & O. EMPLOYEES' REL. ASS'N v. W. B. POST
Attorney:Mr. Jas. I. Brownson, Jr. (with him Messrs. A. W. & M. C. Acheson), for the plaintiff in error: Mr. H. M. Dougan, for the defendant in error:
Judge Panel:Before GORDON, C.J., PAXSON, STERRETT, GREEN, CLARK and HAND, JJ.; WILLIAMS, J., absent.
Case Date:October 29, 1888
Court:Supreme Court of Pennsylvania

Page 885

15 A. 885 (Pa. 1888)

122 Pa. 579

B. & O. EMPLOYEES' REL. ASS'N

v.

W. B. POST

No. 41

Supreme Court of Pennsylvania

October 29, 1888

Argued: October 15, 1888

ERROR TO THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY.

No. 41 October Term 1888, Sup. Ct.; court below, No. 166 June Term 1884, C.P.

On April 18, 1884, William B. Post brought an action against The Balt. & O. Employees' Relief Association, declaring in a narr filed on March 16, 1886, that in the "month of December, 1882, said plaintiff being in the employment of the Baltimore & Ohio Railroad Company as the conductor of a gravel train, at the direction of said Baltimore & Ohio Railroad Company, made application to the Baltimore & Ohio Employees' Relief Association, defendant, for the benefits accruing to membership in that association; and Whereas, in January, 1883, said Baltimore & Ohio Employees' Relief Association, defendant, demanded and received from him (the plaintiff) the usual, proper and customary assessment upon his wages as employee of said Baltimore & Ohio Railroad Company, whereby he became entitled to have and receive from said defendant the benefits offered and secured by said defendant to persons in his grade of service in the employment of said Baltimore & Ohio Railroad Company, in case of accident or injury; and Whereas, subsequently, to wit, on February 7, 1883, the plaintiff in the course of his employment aforesaid in the service of said Baltimore & Ohio Railroad Company received an injury to his fore-arm which resulted in his total disability, and entitled him to have all the benefits accruing to persons in his grade of service in the employment of said Baltimore & Ohio Railroad Company by reason of membership in said Baltimore & Ohio Employees' Relief Association, defendant, of the fact of which accident or injury and the disability consequent, said defendant was notified.

"Yet said Baltimore & Ohio Employees' Relief Association, defendant, hath hitherto declined," etc.

The defendant pleaded non assumpsit.

At the trial on December 15, 1887, it appeared in evidence that the defendant association was incorporated by an act of the legislature of Maryland of May 3, 1883, its object being to extend relief in case of sickness, injury, old age and death to the employees of the Baltimore & Ohio Railroad Company, and of other companies, and their families. On its organization, it adopted a constitution and a series of by-laws which provided a scheme of accident benefits, in which the railroad employees who became its members were graded into five classes, with reference to the amount of pay received by them monthly as such employees. The members of each class, when injured by accident while in the discharge of duty in the service of the railroad company, were to receive a certain sum per day while totally unable to labor, the payments to be reduced one half after six months' disability. To entitle an employee to these benefits, payable only from the date of perfecting his application for membership, he was to pay monthly a sum, graduated also according to the service in which he was engaged, which was to be deducted, in advance, from his wages upon the monthly pay-rolls of the railroad company.

In December, 1882, and January and part of February, 1883, the plaintiff was in the employ of the B. & O.R. Co., engaged, part of the time as a brakeman, and part of the time as a conductor, upon a gravel train upon the Pittsb. Southern Ry., a narrow-gauge road which had recently passed into the control of the B. & O.R. Co., and was in course of alteration to a standard gauge. On February 7, 1883, while in the discharge of his duty, he was injured to such extent that amputation of his left fore-arm became necessary, resulting in permanent disability.

The plaintiff, called in his own behalf, testified that about February 15, 1883, when he was paid for the month of January, his pay "should have been $52.60, or thereabouts;" that he was paid "about $48," by a paymaster whose name he thought was Jenkins, in the employ of the B. & O.R. Co.

Q. Did you ask for an explanation at the time this payment was made to you? Objected to.

The purpose is to show that at the time the plaintiff was paid his wages for the month of January, 1883, there was deducted from those wages an amount of money which the paymaster said was deducted by reason of the plaintiff's membership in the defendant association.

Objected to:

1. Because the plaintiff has not shown, and does not offer to show, that his application for membership was ever received, or passed upon and accepted by the corporation defendant, or that the defendant ever authorized the collection of membership dues from him, or received the moneys alleged to have been collected from him by the paymaster, or ratified such collection.

2. Also, because the plaintiff has not shown what were the rules and regulations of the defendant corporation with respect to the rights of the members, and which formed a part of the contract alleged.

By the court: Objection overruled, offer admitted.

Q. Did you ask for an explanation? A. I did. Q. What explanation was given, if any? A. The paymaster told me that the reason my pay was short was because the insurance money was deducted from it.

It was shown that by his injury the plaintiff was totally disabled from working at his trade, that of a shoe-maker, and he then offered in evidence the Combined Experience Mortality Tables; this for the purpose of enabling the jury to ascertain the value of the benefits to which the plaintiff is entitled, if they think he is entitled to any benefits, under the contract alleged to have been made with the defendant company.

Objected to:

1. For the reason that under the contract set up the plaintiff would be entitled to receive benefits only during the continuance of total disability to labor, and the evidence shows such total disability has ceased.

2. For the reason that the claim for future benefits arising after the institution of the suit is not included in the action, as shown by the pleadings.

By the court: Objection overruled, offer admitted.

By plaintiff's Mr. Post was born in October, 1844; he is now in his 42d year; his expectation of life is twenty-five and eighty-four hundredths years.

The plaintiff then rested.

In its case in chief the defendant called Dr. J. A. Doerner, one of its medical examiners, who testified that sometime in the latter part of 1882, or in the early part of 1883, applications made by the employees on the Pittsb. Southern division, including the plaintiff, were placed in his hands.

Q. Did you go on and examine Mr. Post? Objected to.

The purpose is to show that no steps were taken toward acting upon these applications.

Objected to as incompetent and irrelevant.

Defendant offers to show, that after Mr. Barren handed these applications to the witness, the medical examiner of the company, that Mr. Barren's superior officer overruled him and directed that the applications be not proceeded with; this to be followed by evidence that the applications were not forwarded to the office of the secretary; that no action was taken upon them, and they were never accepted, and no premiums were ever deducted from the wages of the men or received by the association.

By the court: Do you propose to follow that further by showing that Mr. Post had notice of this non-action of the company?

Defendant's I don't know how that is.

By the court: Objection sustained, offer overruled. 4

The defendant then renewed the offer, with its terms more in detail and definite, and added: Also, that at that time a physical examination by the medical inspector was requisite in every application for membership in the association; the purpose of the offer is to show that one of the preliminary steps towards accepting or rejecting the application of the plaintiff was not taken, and the reason for this.

Objected to, as a whole, as incompetent and irrelevant.

By the court: Objection sustained to the offer as a whole.

The defendant then proved the signatures of the plaintiff to two papers, exhibits H and I. These papers were receipts given by plaintiff, both dated January 25, 1882, for benefits paid by the defendant association, for the months ending October 31, 1881, and November 27, 1881, each containing the clause: "I declare on honor that during the period above stated I have not been able, by reason of said sickness, to perform my accustomed labor, and have not done work of any kind for pay."

Defendant offers in evidence the two papers identified by the plaintiff, and marked exhibits H and I; to be followed by evidence that the last clause in the printed form constituting these papers was, both at the time the papers bear date and at the time the application of the plaintiff in question in this suit was signed, required to be included in every receipt to the association for benefits, whether sick or accident benefits; that this requirement was by a regulation of the association: This for the purpose of throwing light upon the construction and meaning of the provision in the constitution and by-laws of the defendant association of the words, total disability to labor, or, total inability to labor; and also for the purpose of showing that the plaintiff had knowledge of the regulation aforesaid, and of the custom and course of dealing between the defendant and its members in regard to the practical construction placed upon these words.

Objected to.

By the court: Objection sustained.

The evidence adduced on the trial is sufficiently indicated in the charge to the...

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