Benefit Ass'n of Railway Employees v. Hancock

• Decision Date: 21 March 1933
• Citation: 58 S.W.2d 578,248 Ky. 315
• Parties: BENEFIT ASS'N OF RAILWAY EMPLOYEES v. HANCOCK.
• Court: Kentucky Court of Appeals

58 S.W.2d 578

248 Ky. 315

BENEFIT ASS'N OF RAILWAY EMPLOYEES v. HANCOCK.

Court of Appeals of Kentucky

March 21, 1933

Appeal from Circuit Court, Pulaski County.

Action by Ella Brassfield Hancock against the Benefit Association of Railway Employees. Judgment for plaintiff, and defendant appeals.

Affirmed.

H. H Denton, of Somerset, Paul E. Keller, of Chicago, Ill., and J S. Cooper, of Somerset, for appellant.

B. J Bethurum and Virgil P. Smith, both of Somerset, for appellee.

RICHARDSON Justice.

George Dewey Brassfield resided at Somerset, Pulaski county, Ky. and was a section foreman in the employment of the Cincinnati, New Orleans & Texas Pacific Railway Company. The Benefit Association of Railway Employees, prior to the 1st day of October, 1929, issued and delivered to him a policy insuring his life. On the 1st day of October, 1929, there was due the company on an old policy $1.10, the balance of a premium. It took up this policy and issued to him another, for the agreed premium of $3.65, payable monthly, insuring him in the sum of $2,000 against accidental death. His wife, Ella Brassfield, was the designated beneficiary in the latter policy. On the 10th day of April, 1931, through accidental, external, and violent means, he was killed while in the line of duty as an employee of the railway company. Notice of his death was furnished to the insurance company, and it promptly denied its liability. He procured the policy on a written application. His signature to the application was "Dewey Brassfield," but it was given in the policy, as George Dewey Brassfield, Elihu, Ky. Simultaneously with his signing of the application, he executed and delivered to the company an instrument commonly known as a "pay order," in this language:

"Dewey Brassfield No. 629512

For value received, I hereby authorize my employer, C. N. O. & T. P. Ry. to deduct from my wages and pay to Benefit Association of Railway Employees the following sums: First deduction to be made from October 1929 earnings.

Membership Fee Bal. Oct. $2.55 Regular monthly deduction to be made from each months earnings--to be made during my employment by said employer; Per Capita Tax Premium No. Nov. $3.65 ----- Total First Deduction $6.20 Beginning Nov. 1929 Earning One months premium $3.55 One month's per capita Tax .10 --------------------------------------- Total Regular monthly deduction $3.65"

Neither the $1.10 which was the balance of the premium due and unpaid at the time the policy was issued, nor the first premium on the present policy, was paid upon the delivery of the policy. Both were taken care of by the pay order retained by it. It was the custom of the employees, the railway company, and the Benefit Association of Railway Employees, for the railway company to retain the possession of the pay order, deduct from the wages of the employee the premium, and remit it to the insurer. Section G of the policy and the pay order embraced the agreement between the insured employee and the Benefit Association of Railway Employees for the payment of the monthly premium by the employee of the railway company. Section G of the policy is in this language:

"Sec. G. Premiums on this policy may be paid either in cash or through paymaster's orders when authorized by the Insured. The payments specified in the order for the payment of moneys on this policy are premiums for consecutive months and each shall apply only to its corresponding insurance period. No claim during any period for which its respective premium has not been actually paid in full shall be valid under this policy except such claims as may arise during the period of grace and except in case of a just claim originating before the end of the month from the wages of which the first premium is to be dedicated, as provided in the order; but no claim shall be valid in any such case if the insured shall have left the employment of the employer named in the order without having earned in the month designated therein wages to pay said first premium nor if the Insured shall have collected or disposed of the wages earned in said month, so that there shall not remain sufficient wages for the payment of said premium, unless the payment then due shall have been otherwise paid in cash.

The insured may terminate this policy contract and revoke his pay order at the expiration of thirty (30) days from 12 o'clock noon of the date of written notice delivered at or mailed to the Home Office of the Association, and the Association may terminate this policy contract at the expiration of thirty (30) days from 12 o'clock noon of the date of written notice delivered to the Insured or mailed to his last known address, but such termination by the Association shall be without prejudice to any claim accrued or existing at date of termination. In the event this policy contract is terminated by either party hereto, the Association shall pay the insured by cash or check the pro-rata unearned portion if any, on the date of termination, of the premiums actually paid by the Insured."

In accordance with an existing custom, the Benefit Association of Railway Employees monthly furnished the railway company a list of its employees who had signed and delivered to it pay orders, giving their names, occupations, locations, and order numbers, from whose wages the railroad company would deduct the monthly premiums due the insurer, charge them to the employees, and remit same to the Benefit Association of Railway Employees, Chicago, Ill. It delivered to the railway company a deduction list for the month of September, 1929, containing the names of twenty-four employees, giving their occupations, locations, and order numbers, which included "4 Brassfield D 163, Occupation Sec. Foreman, Location, Cedar Grove, Order No. 308,184, amount $1.10." The October list contained the names of twenty-three employees, including "4 G. E. Brassfield 163, Occupation, Sec. Foreman, Location, Cedar Grove, Order #629,512, amount due $6.20." This list was marked, as to Brassfield, "No time," and returned by the railway company to the Benefit Association of Railway Employees. The November list contained the names of twenty-two employees, including "3 G. D. Brassfield 163," with his occupation, location, and order number, identical with those of the list submitted for the month of October, excepting his name thereon was G. D. Brassfield, the amount to be deducted was $7.30, which was returned to the Benefit Association of Railway Employees with the remark, "No time." From the date of the issuance of the last policy, Brassfield continued in the employment of the railroad company as a section foreman, with the location designated "Cedar Grove" and "Order No. 629,512."

The deduction list for September, 1929, was for $1.10, being the balance due under the old policy. The deduction list for October was for $6.20, which is made up of a balance for October, $2.55, premium November, $3.65. The deduction list for November was for $7.30. No deduction for either of these amounts was made by the railway company from Brassfield's wages and remitted to the Benefit Association of Railway Employees. Brassfield's wages were $127.50 per month. He drew his wages on the 30th day of each month, leaving always one-half of one month's wages with the railroad company amounting to $55 or $65 per month. Continuously from the date of the policy to the date of his death there was in the control of the railway company one-half of one month's salary due him. The railway company carried Brassfield's name on its records as "D. Brassfield." Each of the deduction lists transmitted by the insurance company to the railway company carried his employment number, occupation, location, and order number, as well as the amount of the premium to be deducted from his wages by the railway company. The railway company failed to observe the occupation, location, and order number of Brassfield as they appeared on the deduction lists, which were adequate to identify him, notwithstanding the error in his initials, and deduct the premiums and remit same to the insurance company. On account of this failure of the railway company, the benefit association ceased to include his name in its deduction lists. It is...