Brotherhood of Locomotive Firemen & Enginemen v. Aday

• Decision Date: 30 January 1911
• Citation: 134 S.W. 928,97 Ark. 425
• Parties: BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN v. ADAY
• Court: Arkansas Supreme Court

134 S.W. 928

97 Ark. 425

BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN v. ADAY

Supreme Court of Arkansas

January 30, 1911

Appeal from Union Circuit Court; George W. Hays, Judge; affirmed.

STATEMENT BY THE COURT.

This suit is on a benefit certificate for $ 1,500, numbered A-92592, taken out by appellee, a fireman, in the Brotherhood of Locomotive Fireman & Enginemen, when he joined the brotherhood in 1902. He went delinquent in 1906, but was reinstated, and it was alleged that while he was a member in good standing upon the books of the grand lodge his left hand became permanently paralyzed, which permanently and totally disabled or incapacitated him from performing all manual labor, which by the terms of his beneficiary certificate entitled him to the payment of the full amount thereof; that he had duly filed his claim as required by the laws of the brotherhood, and payment thereof was refused. Appellant answered, admitting that appellee became a member of the Brotherhood of Locomotive Firemen & Enginemen, and that the certificate sued upon was issued to him; that he was suffering from paralysis of his left hand; denied that it occurred at the time and in the manner alleged; denied that said paralysis totally disabled or incapacitated him from all manual labor; that said paralysis is permanent, and that said paralysis is of either of plaintiff's extremities; denied that it promised to pay appellee $ 1,500 or any other sum and alleged that he obtained said beneficiary certificate upon a false warranty that he did not have paralysis, which rendered it void.

A copy of the constitution of the Brotherhood of Locomotive Firemen & Enginemen was introduced in evidence, and section 70 provides:

"A beneficiary member in good standing upon the books of the grand lodge becoming totally and permanently blind in one or both eyes, or who may become totally and permanently disabled or incapacitated from performing all manual labor on account of Bright's disease of the kidneys, permanent paralysis of either extremities, locomoter ataxia, or consumption of the lungs in its last stage, shall be entitled to the amount of his beneficiary certificate," etc.

The testimony tended to show that Arthur S. Aday filed his claim for total disability under his benefit certificate in accordance with the constitution of the order, demanding the entire amount thereof on March 16, 1908, on account of permanent paralysis of his left hand; that his hand was not in as bad condition then as at the time of trial when he testified: "The condition of the hand at the present time is four fingers of this hand are dead, no feeling in them at all. I can pierce them with a knife, and still have no feeling in them. I am unable to grasp anything; I have no feeling whatever in those fingers. I have no grip with my thumb much, the only little grip that I have in that hand though, is with my thumb. It is getting worse all the time." He testified that he had worked some in a pool room within 18 months before the trial, racking up the pool balls, and also on the river while in Kentucky as the clerk of a boat, and two or three months on the railroad in Louisiana as a flagman after putting in his claim before he was taken out of the railroad service in August, 1908; that there is nothing the matter with his right hand.

Dr. H A. Murphy testified that in May or June, 1909, he made an examination of appellee's hand at the request of an official of the Brotherhood of Locomotive Firemen & Enginemen.

"Q. State what you found upon your examination, please? A. I found the left hand totally paralyzed. Q. Would you say as an expert that the disability was permanent? A. It is. Q. Can he use and work with that hand? A. Not to perform what I think is manual labor. He could not do hard work."

Dr. L L. Purifoy testified that in the summer of 1909, he made an examination of the hand of appellee at the instance of appellant, and that he found paralysis in his left hand.

"Q. Is it, in your opinion, a total or permanent disability? A. It is, without an operation. I think at this time, without an operation, that it would be permanent. Q. Would he have the use of his fingers? A. He would not at this time."

Dr. J B. Wharton testified that he was the medical examiner for appellant, and in his official capacity wrote the following letter to the grand medical examiner of the order, and that everything in it was true to the best of his knowledge and belief:

"El Dorado, Ark., Sept. 1, 1908.

"Mr. W. B. Cory,

"Grand Med. Exam. Locomotive Fire. & Engr.,

"Cleveland, Ohio.

"Dear Sir: This is to certify that after a very careful examination of the conditions existing at present in the case of A. S. Aday, locomotive fireman on the Louisiana division, show that his left hand has atrophied and contracted to such an extent that it renders him disqualified to do any further train service or any manual labor. This condition did not exist in the least at the time I examined him twelve months ago this last June for position on the Louisiana division. At that time his hand had its natural full strength, and did not show any signs of weakness whatever, and has not until within the last two or three months. There has been a steady weakening of the muscles of the hand and wrist. In my opinion condition was brought about as a result of loss in the nerve supply of the hand. In 1903 he sustained a deep cut on the anterior surface of the arm and lower third, severing a part of the main nerve supply ligaments of muscles of the arm and forearm. I claim that this injury received at that time has brought about the present existing condition of the hand. This injury he received was done while on duty on an engine on the Illinois Central Railroad during a wreck. He was thrown through a cab window, cut his arm; and I wish to recommend that he be paid the full amount of his insurance in the brotherhood, in order that he may be able to go to some eminent specialist and try to have his hand and arm saved before it is too late; and, unless he receives this money, he will be unable to get the attention he necessarily must have in order to try to save his hand and have it restored to anything like its normal condition again. He has not the necessary funds in sight to receive the proper attention that he should have. On account of this injury and loss of strength in his hand, he has been forced to retire from any further service of the railroad company, so you can readily see the position it places him in. Now, I take the liberty to recommend to you and the officers of the Brotherhood of Locomotive Firemen & Enginemen that he be paid the full amount of his policy; and if I did not think it justifiable, I would not as your medical examiner recommend this done.

"Yours very truly,

"Dr. J. B. Wharton,

"Med. Exam. for Pine Hill Lodge No. 618, El Dorado, Arkansas,

Med. Exam. O. R. C. B. of L. F. & E., and B. of R. T."

"Subscribed and sworn to before me this the 1st day of September, 1908.

"James Carroll, Notary Public.

"I solemnly swear that the statements made in this letter are the facts.

(Signed) "A. S. Day.

"Subscribed and sworn to before me this 1st day of September, 1908.

(Seal.)

"Jas. Carroll, Notary Public."

The court directed the jury to find a verdict for plaintiff for the amount sued for, and from the judgment defendant appealed.

Judgment affirmed.

R. L. Floyd, for appellant.

The court erred in giving a peremptory instruction for appellee because there was evidence to support a finding by the jury that the paralysis was not permanent; that it was not total; that he was not totally disabled or incapacitated...