Albert v. Order of Chosen Friends

• Decision Date: 23 August 1887
• Parties: ALBERT v. ORDER OF CHOSEN FRIENDS.
• Court: United States Circuit Court, District of Kentucky

34 F. 721

ALBERT v. ORDER OF CHOSEN FRIENDS.

United States Circuit Court, D. Kentucky.

August 23, 1887

Browder & Edwards and Dodd & Grubbs, for plaintiff.

Finch &amp Finch and F. T. Fox, for defendant.

BARR J.

The plaintiff has demurred to the defendant's answer, and this demurrer raises important questions. The plaintiff has sued to recover of the defendant $3,000 because of his total inability to pursue his usual occupation-- that of a barber. The answer (second paragraph) alleges that the plaintiff is not disabled by his disease from following some other occupation than that of a barber, and that he has, since his alleged disability, engaged in other occupations, and that he has in fact run, as owner, a restaurant in Russellville, and is now engaged in said occupation, and that he has also been engaged in clerking in a boot and shoe store since said disability. The plaintiff is a member of the Order of Chosen Friends, and his certificate, which is filed, provides that he is 'entitled to all the rights and privileges of membership, and of a benefit not exceeding three thousand dollars from the relief fund of said order, in the manner and subject to the conditions, set forth in the laws governing said relief fund, and in the application for membership. ' The fourth section of article 2 of the relief fund declares that: 'Should a member become totally and permanently disabled from following his or her usual or other occupation, by reason of disease or accident such member, upon the receipt and approval of satisfactory proofs, as hereinafter provided for, shall be entitled to a benefit of not exceeding one-half the amount of the relief fund certificate held by him or her. ' The plaintiff insists that, as the answer set up his ability to follow occupations which are not of a like character as that of a barber,-- his usual occupation,-- it is not good. He construes this section as meaning his or her usual or other like occupation. Such a construction is sustained by excellent authority. There is another section (11) of this article which, however, defines the total and permanent disabilities mentioned in section 4, and these definitions are, I think, conclusive upon the plaintiff. That section is as follows:

'The following are hereby declared to be total and permanent disabilities, within the meaning of section 4 of this article, viz. The loss of both hands; the loss of both feet the loss of both eyes; the loss of one hand, and permanent crippling of the other; the loss of one foot, and permanent crippling of the other foot or leg; such a permanent and disabling sickness as shall render the member helpless to the extent of permanently preventing the member from following any occupation whereby he or she can obtain a livelihood.'

This section leaves no room for the rule of ejusdem generis to be applied. The language is explicit that the disabling sickness shall render the member helpless to the extent of permanently preventing him 'from following any occupation whereby he or she can obtain a livelihood. ' See Saveland v. Fidelity Co., 30 N.W. 237. The language of the article of association, which states the principal objects of the association, or that of the constitution, which declares that one...