Brotherhood's Relief and Compensation Fund v. Smith

• Decision Date: 10 March 1971
• Docket Number: No. 1,No. 170A3,170A3,1
• Citation: 267 N.E.2d 187
• Parties: BROTHERHOOD'S RELIEF AND COMPENSATION FUND, Appellant, v. Robert J. SMITH, Appellee
• Court: Indiana Appellate Court

Page 187

267 N.E.2d 187

BROTHERHOOD'S RELIEF AND COMPENSATION FUND, Appellant, v. Robert J. SMITH, Appellee.

No. 170A3.

Appellate Court of Indiana, Division No. 1.

March 10, 1971.

Rehearing Denied May 10, 1971.

Timothey P. Galvin, Jr., John E. Leeney, Galvin, Galvin & Leeney, Hammond, for appellant.

Albert C. Hand, Hammond, for appellee.

ROBERTSON, Judge.

This is an appeal from the Lake Superior Court wherein plaintiff-appellee brought an action to recover certain benefits allegedly due him under the terms of a relief and compensation contract purchased by appellee from the Brotherhood's Relief and Compensation Fund, defendant-appellant herein. The trial court entered judgment for appellee Smith and against appellant in the sum of Thirty Six Hundred Dollars ($3600) plus attorney fees in the sum of Four Hundred Fifty Dollars ($450).

On appeal, appellant's sole assignment of error is that the trial court erred in overruling appellant's motion for new trial. The motion for new trial alleged the following specifications of error:

1. Error in the assessment of the amount of recovery, in this, that the amount is too large.

2. That the decision of the court is not sustained by suffiicent evidence.

3. That the decision of the court is contrary to law.

The case before us merits the following summarization of the evidence pertinent to this appeal.

The record reveals that appellant is a non-profit Pennsylvania corporation which insures employees of the railraod industry against 'held out of service' and confers retirement benefits. This corporation operates as a fraternal organization to which its members are elected and thereafter pay monthly dues in order to derive the benefits of membership. On May 31, 1963, appellee was duly elected and admitted to the Brotherhood's Relief and Compensation Fund, and has since remained a member in good standing. Following a derailment incident on December 12, 1966, for which appellee Smith accepted full responsibility, appellee was demoted by his employer, the Indiana Harbor Belt Railroad, from the position for car retarder operator to a position of lesser responsibility and pay.

After his demotion, appellee filed a claim with appellant for 'held out of service' benefits. Appellee's claim asserted entitlements as scheduled in his certificate of membership at the rate of Six Dollars ($6) per day under his regular membership, and Twelve Dollars ($12) per day under his special membership not to exceed a maximum period of Two Hundred (200) days. This claim, initially and subsequently on appeal to the Board of Directors of the Brotherhood's Relief and Compensation Fund, was rejected by the appellant.

During the interim between the first claim and the commencement of this action, appellee Smith was involved in a second derailment incident on April 23, 1967, which resulted in the dismissal of himself and the crew with whom he was working. The dismissal lasted for Eighty Five (85) days at which time appellee was reinstated. Upon a claim made by appellee for retirement benefits for the Eighty Five (85) day period of dismissal, appellant paid appellee the sum of Sixteen Hundred Seventy Four Dollars ($1674) which was the full amount to which appellee was entitled on this claim, and was not contested by either party.

The sole issue to be resolved in this appeal is whether or not the trial court erred in allowing appellee to recover 'held out of service' benefits under his first claim. In making such a determination, however, this court will only consider alleged error which is properly presented before it. Appellant has wholly failed to properly present allegations of error for review by this court.

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