Brotherhood of Locomotive Firemen and Enginemen v. Ginther
| Decision Date | 08 February 1927 |
| Docket Number | 1271 |
| Citation | 35 Wyo. 244,252 P. 1026 |
| Parties | BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN v. GINTHER [*] |
| Court | Wyoming Supreme Court |
Error to District Court, Albany County; Volney J. Tidball, Judge.
Original Opinion of August 31, 1926, Reported at: 35 Wyo. 244.
Rehearing Denied.
OPINION
ON PETITION FOR REHEARING
A petition for rehearing has been filed, supported by an extended brief and argument. All material points raised by the petition were thoroughly considered by the court before the case was decided, and, while we cannot but be impressed by the earnestness of counsel in contending that the decision was wrong, we are sure that a rehearing would be useless.
One point only need be discussed. In the trial court it was stipulated in writing that a printed copy of the constitution and by-laws of the defendant, "containing the constitution and by-laws of the order in force at the date of the death of Garrett P. Ginther" should be admitted in evidence without objection, and "considered as evidence of the rules and regulations of the order and accepted as such."
At the trial two copies of the constitution were produced and marked "Exhibit 1" and "Exhibit 2." Exhibit 1 is the constitution in effect on and after January 1, 1920, and Exhibit 2 is that in effect on and after January 1, 1923. The insured died in June, 1922. The principal provision on which the defendant relied was not the same in the two exhibits. As it reads in Exhibit 1, it is quoted as Section 10a, in our former opinion. 248 P. 852 at 853. The similar section in Exhibit 2 has the added words, "by the member," so that the last sentence of the section reads: "Said certificate must be forwarded to the General Secretary and Treasurer by the member." If this section, as it appears in the constitution of 1923 were controlling it might be, as argued by counsel, that the case of Arnold v Newcomb, 104 Ohio St. 578, 136 N.E. 206, relied on by the majority of the court in our former opinion, would lose much of its force as an authority.
And it is contended that we should have decided the case on the section as it appears in the constitution of 1923, because that is the constitution referred to in the stipulation and the one from which the section was read at the trial of the case in the district court.
This matter was considered before the case was decided, and all the members of the court were quite naturally of opinion that the constitution of 1920, and not that of 1923, was applicable. We are still unanimously of that opinion. The stipulation cannot be construed to authorize the consideration of any regulation not in force at the death of the insured. At the trial, when both Exhibits were before the court, counsel read the pertinent section from the constitution of 1923 after assuring the trial judge that it was the same in the constitution of 1920. This assurance was an error, and though, no doubt, honestly made, the defendant can gain no advantage by it.
Counsel now say that, if forced to rely on the constitution of 1920,...
To continue reading
Request your trial