Brotherhood of Railroad Trainmen v. Nelson

• Decision Date: 05 June 1933
• Docket Number: 30599
• Citation: 166 Miss. 671,147 So. 661,148 So. 179
• Court: Mississippi Supreme Court
• Parties: BROTHERHOOD OF RAILROAD TRAINMEN v. NELSON

147 So. 661

148 So. 179, 166 Miss. 671

BROTHERHOOD OF RAILROAD TRAINMEN v. NELSON

No. 30599

Supreme Court of Mississippi

June 5, 1933

Division B

April 24, 1933

Suggestion Of Error Overruled June 5, 1933.

APPEAL from circuit court of Hinds county HON. W. H. POTTER, Judge.

Action by Theodore L. Nelson against the Brotherhood of Railroad Trainmen. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

On suggestion of error. Suggestion of error overruled.

For former opinion, see 147 So. 661.

Reversed and judgment here for appellant. Suggestion of error overruled.

W. W Ramsey, Thames & Thames, and Brunini & Hirsch, all of Vicksburg, for appellant.

The brotherhood established another department which it denominated the beneficial department, and provided that claims for disability, other than certain specified claims, should be addressed to the systematic benevolence of the order, but not the basis of any legal liability on the part of the order.

Claims by members in this beneficiary department "for any permanent and total disability shall be addressed alone to the benevolence of appellant's society for which there shall be no legal liability on the part of appellant."

Grand Lodge Brotherhood of Railroad Trainmen v. Smith, 129 Miss. 738, 92 So. 837.

There was reposed, in the first place, in the pension board the power and duty to determine whether or not the member could perform "any remunerative labor sufficient to care for his immediate needs." The pension board had to take into consideration, not only the extent of his disability, but had to apply the law of the brotherhood to determine whether or not appellee was able to perform "any remunerative labor sufficient to care for his immediate needs," as aforesaid.

The determination of that question was left by the contract to the pension board, with a right of appellee to have the board of insurance pass upon the identical evidence presented to the pension board.

The record in this case shows that the pension board did not act arbitrarily, but that its decision was supported by substantial facts.

19 R. C. L. 1233, sec. 43; 19 R. C. L. 1232, sec. 42.

The member in the pension department is not entitled to the pension wherever he is able "to perform any remunerative labor which in the judgment of the pension board is sufficient to care for his immediate needs."

Lewis v. Brotherhood, 194 Mass.; 17 L.R.A. (N.S.) 714; 52 L.R.A. (N.S.) 829.

M. A. Pilgrim and Chalmers Potter, both of Jackson, for appellee.

The doctrine that an award of arbitrators may oust the courts of jurisdiction does not apply to the rejection by the officers of a mutual benefit society of a claim on a member's certificate, as it is entirely inconsistent with, and repugnant to, all notions of justice that one should be an arbitrator in his own case.

Independent Order v. Wilkes, 98 Miss. 179, 53 So. 403, 52 L.R.A. (N.S.) 817.

Such contract is void in that it is contrary to public policy and an attempt to oust the courts of Mississippi of their jurisdiction.

Columbia Woodman v. Ramsey, 118 Miss. 454, 79 So. 351.

We most respectfully submit that the mere fact that a man is endeavoring to hold down a job that he is disabled by reason of his physical condition to do should not bar a recovery in this case.

Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750.

Argued orally by J. B. Brunini and Jas. D. Thames, for appellant, and by Chalmers Potter, for appellee.

OPINION

Griffith, J.

On the 1st day of March, 1926, appellee, being a member of appellant order, was granted what is termed a pension certificate, the said certificate to be construed and determinable according to the constitution and bylaws of the appellant order. In January, 1929, appellee, while engaged in his duties as a railway trainman, by a fall received an injury to his shoulder which he claimed produced a total and permanent disability which entitled him to a pension of thirty dollars per month. Appellee made due and seasonable proof to the beneficiary board of the order, and his claim, having been by that board disallowed, was appealed to the board of insurance, and was by that body also disallowed. On August 27, 1932, he sued in the circuit court of Hinds county, and, having recovered judgment there, the order appeals.

Under section 68 of the constitution of the order, certain injuries are definitely set out as constituting total and permanent disabilities. The injuries or disabilities claimed by appellee do not come within that section. By section 70, it is distinctly provided that all claims for total and permanent disability not coming within section 68 shall be held, to be addressed to the benevolence of the brotherhood, and shall in no case be made the basis of any legal liability on the part of the brotherhood. Appellee contends, however, that it is not competent and is in contravention of public policy that appellee shall be bound by his agreement to abide the decisions of the brotherhood, and that his claim is as much a matter of legal liability as are those expressly made justiciable by section 68 of the constitution.

This identical question was before this court in Grand Lodge Brotherhood of Trainmen, v. Smith, 129 Miss. 738, 92 So. 837, 27 A.L.R. 863, and was squarely decided against the contention of appellee, and, although appe...