Brotherhood of Railroad Trainmen v. Smith

• Decision Date: 12 February 1931
• Docket Number: No. 1012.,1012.
• Citation: 36 S.W.2d 771
• Parties: BROTHERHOOD OF RAILROAD TRAINMEN v. SMITH.
• Court: Texas Court of Appeals

36 S.W.2d 771

BROTHERHOOD OF RAILROAD TRAINMEN v. SMITH.

No. 1012.

Court of Civil Appeals of Texas. Waco.

February 12, 1931.

Rehearing Denied March 19, 1931.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Action by Archie C. Smith against the Brotherhood of Railroad Trainmen. Judgment for plaintiff, and defendant appeals.

Affirmed.

Tom J. McGrath, of Cleveland, Ohio, and E. C. Street, of Waco, for appellant.

John N. Gauntt and N. B. Brown, both of Waco, for appellee.

GALLAGHER, C. J.

This suit was instituted by appellee, Archie C. Smith, against appellant, Brotherhood of Railroad Trainmen, a voluntary unincorporated association, to recover on a benefit certificate issued by it to him. Appellee alleged that appellant, by the terms of said certificate, agreed, in event he should sustain an injury resulting in total and permanent disability, to pay to him the sum of $2,800. He further alleged that by the terms thereof the severance of an entire foot at and above the ankle joint should constitute such disability; that thereafter he sustained such injury; that his left foot was completely severed from his body between the ankle and kneejoint, and that he was thereby totally and permanently disabled within the terms of such certificate. He further alleged that he had made demand on appellant for the payment of said sum, and that payment had been refused. Based on such allegations he sought to recover liquidated damages and also attorney's fees in the sum of $750, which amount he alleged was reasonable. Appellant alleged that appellee had been expelled from the order for nonpayment of dues; that he had never been reinstated, and that the certificate sued on by him had been thereby forfeited and had become null and void. Appellant further alleged that it was a fraternal benefit society, and that it limited its membership to persons engaged in one hazardous occupation, that of service on the trains or in the yards of steam and electric railways.

The case was tried by the court without a jury, and judgment rendered in favor of appellee against appellant for the sum of $2,800, with interest from June 7, 1929, the date of appellee's demand for payment and the refusal thereof. There was no request for findings of fact and conclusions of law, and none were filed.

Opinion.

Appellant by a group of propositions assails the judgment of the court on the ground that same is without support in the evidence and contrary thereto. Appellant's specific contention in this connection is that the evidence is insufficient to justify the trial court in holding that appellant had waived the admitted forfeiture of appellee's benefit certificate and his failure to comply with its requirements for reinstatement by his local lodge. Appellant, according to an agreement made in open court and incorporated in the statement of facts as evidence, is a fraternal benefit society, having a lodge system consisting of a supreme body and local lodges. Appellee, on and before December 1, 1928, was a member of one of such local lodges and as such held the benefit certificate sued on. He was in good standing, and said certificate was admittedly then in full force and effect. He did not on or before said date pay dues and assessments for the month of January, 1929, as required by the laws of the order. By reason of such failure he was by the terms of such laws automatically expelled from the order and his benefit certificate forfeited. He made no further payment of dues or assessments until the latter part of February, 1929. The testimony concerning such payment, the receipt thereof by the collector of the local lodge, and his subsequent action in the premises, is sharply conflicting. The finding of the trial court in favor of appellee being general, every issuable fact must be considered found in his favor, if there is any evidence to support such finding. In passing upon the sufficiency of the evidence to sustain each such finding, we must view the same in the light most favorable thereto, rejecting all evidence favorable to the opposite contention and considering only the facts and circumstances which tend to sustain such finding. Hines v. Kansas City Life Ins. Co. (Tex. Civ. App.) 260 S. W. 688, 690, pars. 2 and 3. No useful purpose could be served in reciting and commenting upon the conflicts in the testimony. Measured by the standard above recited, there is testimony to sustain implied findings by the court, in substance, that appellee, at Navasota, Tex., on the 26th day of February, 1929, wrote and signed his check for $30 on a bank situated in Mart, Tex., where his local lodge of the order was situated and where its collector resided, and made the same payable to such collector; that he inclosed said check in an envelope, duly stamped, and addressed to said collector; that about 12:10 a. m. on February 27th he deposited said envelope in the mail box in a mail car of a north-bound train; that the envelope inclosing said check should have reached the post office at Mart some time in the morning of the 27th; that it did actually reach said post office and was received by said collector on the 27th or 28th day of February, and before appellee sustained the accident which resulted in the loss of his foot; that there was a notation on said check, in substance, that the same was to be applied to the payment of appellee's dues and assessments in the order for the months of January, February, March, and April, 1929; that said collector made no complaint of the fact that such remittance was by check, but accepted and retained the same; that thereafter on the 5th day of March, 1929, said collector, with full knowledge that appellee had...