Cacic v. Slovenska Narodna Podporna Jednota of Chicago, Ill.

• Decision Date: 02 June 1936
• Docket Number: 7489.
• Citation: 59 P.2d 910,102 Mont. 438
• Parties: CACIC v. SLOVENSKA NARODNA PODPORNA JEDNOTA (SLOVENIC NAT. BEN. SOC.) OF CHICAGO, ILL., et al.
• Court: Montana Supreme Court

59 P.2d 910

102 Mont. 438

CACIC v. SLOVENSKA NARODNA PODPORNA JEDNOTA (SLOVENIC NAT. BEN. SOC.) OF CHICAGO, ILL., et al.

No. 7489.

Supreme Court of Montana

June 2, 1936

Appeal from District Court, Silver Bow County, Second District Frank L. Riley, Judge.

Action by Peter Cacic against Slovenska Narodna Podporna Jednota (Slovenic National Benefit Society) of Chicago, Illinois, and another. From a judgment for plaintiff, defendants appeal.

Affirmed and remittitur ordered.

J. F Emigh, of Butte, for appellants.

H. L. Maury, A. G. Shone, and W. E. Coyle, all of Butte, for respondent.

ANDERSON Justice.

On consideration of plaintiff's motion for a rehearing, the opinion herein promulgated on April 1, 1936, is withdrawn and the following opinion substituted therefor:

This action was brought to recover upon a contract of insurance by one of the members of a fraternal insurance society. The complaint was in two counts; both causes of action arose from the same accidental injury suffered by the plaintiff while working in a mine. By the first cause of action it was sought to recover the sum of $500 on account of the paralysis of plaintiff's leg resulting from the injury. On the second cause of action he sought to recover certain disability benefits resulting from his inability to work as a result from the same injury.

The defendant society asserted by its answer that the plaintiff was barred from recovering on both causes of action by reason of his failure to pursue the remedy within the society itself and its governing bodies, as provided by its by-laws; furthermore, that under the by-laws plaintiff was entitled to no recovery on account of the paralysis of his leg; and that as to his disability benefits by reason of certain amendments to the by-laws occurring after his injury, he had been fully compensated on account of such benefits. A trial was had before the court sitting with a jury and a verdict returned in favor of the plaintiff on both causes of action. Judgment was entered in accordance with the verdict. A motion for new trial was made, heard, and denied. The appeal is from the judgment.

Defendant has made numerous specifications of error, many of which relate to the same fundamental question or questions necessary to a decision of this court. The questions which are raised in various ways by the specifications of error may be enumerated as follows: (1) The validity of the provisions of the by-laws making it a condition precedent to the maintenance of an action in court that the member must exhaust all the remedies provided by the by-laws within the society and its governing body; (2) whether under the facts of the case and the by-laws providing for benefits in the event of paralysis of a leg, plaintiff was entitled to recover for such paralysis; (3) whether, under the by-laws, the plaintiff might recover as the result of the one injury a benefit for the paralysis of his leg in a lump sum, and likewise in addition recover weekly disability benefits in accordance with the provisions of the by-laws providing for such disability benefits; (4) whether, under the by-laws providing that in order to recover disability benefits the member must be incapable of performing any kind of work, as applied to the facts in this case, the plaintiff was entitled to recover for such disability benefits; and (5) whether, by amendment to the by-laws after plaintiff had sustained the injury resulting in his disability, the amount of the benefits he was entitled to under the by-laws existing at the time of the injury could be diminished as the result of these subsequent amendments. We shall discuss these questions in the order named.

The by-laws provide for an elaborate procedure to be followed by a member who claims to be entitled to benefits as a condition precedent to his maintaining an action in the courts--a procedure before the branch trial committee, the supreme judicial committee, and the supreme board and referendum or convention. These provisions were in the by-laws when the plaintiff became a member, and it is argued that they became a part of his contract of insurance. Section 7558, Rev.Codes 1921, provides: "Every stipulation or condition in a contract by which any party thereto is restricted from enforcing his rights under the contract, by the usual proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void." Under this statutory provision, the provisions of the by-laws referred to are invalid, and accordingly they afford the defendant no defense to this action, although admittedly the plaintiff had not pursued all of these remedies.

Passing now to the second question: One of the by-laws of the society in force on November 25, 1931, the date when plaintiff sustained the injury, provides: "For the loss of one arm, one hand up to the wrist, or four fingers close to the palm, or one leg, or one foot up to the ankle, or for paralysis of these limbs, or for the loss of one eye, the sum of $500.00 for paralysis affecting the member to 60 per cent. disability of the above mentioned limbs or for the loss of eye-sight the Society shall not pay disability benefits. For paralysis or the loss from 60 per cent. to 99 per cent. of the above mentioned limbs the Society shall pay half disability benefits; and for the total loss of the mentioned limbs it shall pay as provided above."

The testimony discloses beyond question that the sensory nerves of the leg of plaintiff are wholly and totally paralyzed. It likewise reveals that the motor nerves of the leg are partly paralyzed. Though we make here no review of the testimony, the record establishes that the paralysis of the motor nerves of the leg was less than 99 per cent. The testimony discloses that as the result of the paralysis of plaintiff's leg he is unable to perform any work for which he had the mental and physical capacity prior to his injury.

It is a well-known fact that paralysis of a limb may affect only the sensory nerve or the motor nerve; sometimes it affects both nerves. The by-law is ambiguous in that it does not assume to specify as...