Calhoon v. Brotherhood's Relief & Compensation Fund

• Decision Date: 08 January 1940
• Citation: 135 S.W.2d 1096,234 Mo.App. 946
• Parties: AMOS S. CALHOON, RESPONDENT, v. BROTHERHOOD'S RELIEF & COMPENSATION FUND, INC., A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

135 S.W.2d 1096

234 Mo.App. 946

AMOS S. CALHOON, RESPONDENT, v. BROTHERHOOD'S RELIEF & COMPENSATION FUND, INC., A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

January 8, 1940

Appeal from Jackson Circuit Court.--Hon. Albert A. Ridge, Judge.

Judgment affirmed.

Samuel D. Newkirk and Robert E. Coleberd for appellant.

Michaels Blackmar, Newkirk, Eager & Swanson of counsel.

(1) The trial court erred in refusing to give defendant's Instruction lettered "B" at the close of the whole case, such instruction being in the nature of a demurrer to the evidence, for the reasons: (a) Plaintiff was not entitled to recover because the evidence shows his beneficial dues were not paid prior to the month in which plaintiff's alleged injury occured and were not paid prior to the plaintiff's alleged injury. (b) The defendant's constitution and the contract are governed by the laws of Pennsylvania, the defendant is a beneficial association and the contract is not an insurance contract. Carey v Schmeltz, 221 Mo. 132, l. c. 138; Brotherhood of R R. Trainmen v. Adams (Mo. App.), 5 S.W.2d 96, l. c. 98; Green v. Security Mut. Life Ins. Co. (Mo. App.), 140 S.W. 325, l. c. 327; Hayes v. German Beneficial Union (1908), 35 Pa. Sup. 142, l. c. 154; Commonwealth v. Equitable Beneficial Assn. (1890), 137 Pa. St. Rep. 412, l. c. 419; Wick v. Fraternities Accident Order, 21 Pa. Sup. 507, l. c. 509; Myers v. Fritchman, 6 Pa. Sup. 580, l. c. 582; Beeman v. Supreme Lodge Shield of Honor, 215 Pa. St. Rep. 627, l. c. 631; Loyal Orange Institution v. Morrison, 269 Pa. St. Rep. 564; Acri et al. v. Bruscia et al., 265 Pa. St. Rep. 384; Neff v. Daughters of Liberty, 62 Pa. Sup. 251; Robinson v. Harshaw, 63 Pa. Sup. 483. (2) The court erred in giving plaintiff's Instruction No. 1. (a) This instruction, though it purports to cover the entire case and authorize a verdict for plaintiff, does not require the jury to find that the plaintiff, at the time of his alleged injury, was employed in the transportation department of a railroad company and that his physical disability was not due to any wilful or intentional violation or infraction of any rule or regulation of his employer. Finley v. Cont. Ins. Co. (Mo. App.), 299 S.W. 1107, l. c. 1111; Toennies v. St. Louis Pub. Serv. Co. (Mo. App.), 67 S.W.2d 818, l. c. 820; Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W.2d 14, l. c. 19. (b) It entirely ignores the defense of the nonpayment of beneficial dues by the plaintiff on or before the last day of February, 1934, for the month of March, 1934. Carroll v. Union Marine Ins. Co. (Mo. App.), 249 S.W. 691, l. c. 692; Walker v. Bianchi et al. (Mo. App.), 276 S.W. 1044, l. c. 1045, 1046; Koury v. Home Ins. Co. (Mo. App.), 57 S.W.2d 750; Tobin Const. Co. v. Davis et al. (Mo. App.), 81 S.W.2d 474; Jones Store Co. v. Kelly et al. (Mo. App.), 36 S.W.2d 681; Ormsby v. Laclede Farmers Mut. Fire & Lightning Ins. Co., 98 Mo.App. 371. (3) The court erred in giving plaintiff's Instruction No. 2. (a) This instruction is broader than the pleadings and is not within the purview of the evidence. State ex rel. Central Coal & Coke Co. v. Ellison et al., 270 Mo. 645, 195 S.W. 722, l. c. 653, 654; Degonia v. Ry. Co., 224 Mo. 564, 123 S.W. 807, l. c. 589; Rosenweig v. Wells, 308 Mo. 617, 273 S.W. 1071, l. c. 627; Karte v. Brockman Mfg. Co., 247 S.W. 417, l. c. 423; Block v. Met. St. Ry. Co., 217 Mo. 672; Telamus v. Simpson et al., 321 Mo. 724, 12 S.W.2d 920, l. c. 748; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179, 20 S.W.2d 676, l. c. 1195; First National Bank v. The Equipment Co., 221 Mo.App. 733, 285 S.W. 779, l. c. 737. (b) A cause of action cannot be based on waiver. Mitchell v. American Mutual Assn. (Mo. App.), 46 S.W.2d 231, l. c. 236; Doerr v. National Fire Ins. Co., 315 Mo. 266, l. c. 275; Hancock Mutual Life Ins. Co. v. Schlink, 175 Ill. 284, 51 N.E. 795, 797, l. c. 286; Shepard v. Met. Life Ins. Co. (Mo. App.), 99 S.W.2d 144. (c) This instruction is misleading, confusing and ambiguous because it fails to distinguish beneficial dues and non-beneficial dues. Christner v. Railroad Co., 228 Mo.App. 220, 64 S.W.2d 752, l. c. 757; Lee v. Shyrock-Wright Grocery Co. (Mo. App.), 53 S.W.2d 406, l. c. 408.

Hill & Riederer for respondent.

(1) (a) The court did not err in submitting this cause to the jury. The allegations of plaintiff's petition were sustained by the clearest possible proof. Bonnot v. Grand Lodge Brotherhood of R. R. Trainmen, 229 Mo.App. 519, 81 S.W.2d 360; Ceresia v. St. Guispeppe Mut. Aid Assn. (Mo. App.), 211 S.W. 81, l. c. 83; Dessauer v. Knights of Maccabees, 210 S.W. 896; Marsden v. Williams, 281 S.W. 479; McMahon v. Maccabees, 151 Mo. 522, 52 S.W. 384; Kitzinger v. Barbers Union, 103 S.W.2d 547; Everett v. Patrons & Farmers Mut. Ins. Co., 7 S.W.2d 463, l. c. 468; Watkins v. Brotherhood American Yeomen, 188 Mo.App. 626, 176 S.W. 516; Roleson v. Gr. Lodge Brotherhood of R. R. Trainmen, 229 Mo.App. 772, 84 S.W.2d 651. (b) The laws of Pennsylvania are inapplicable to the facts of this case. Respondent's membership certificate was issued in Florida. The right to remuneration for loss of position was a vested contract right and under the laws of no State could this be taken away from him. Roleson v. Grand Lodge Brotherhood of R. R. Trainmen, 84 S.W.2d 651, l. c. 653, supra; Watkins v. Brotherhood of Am. Yeoman, 176 S.W. 516, supra; Dessauer v. Knights of Maccabees, 210 S.W. 896. (2) (a) Plaintiff's Instruction No. 1 confined the jury to the consideration of competent evidence supporting the allegations of respondent's petition. An uncontroverted fact does not have to be submitted to the jury for consideration. State ex rel. v. Haid, 59 S.W.2d 1057; Hill v. St. L. Pub. Serv. Co., 64 S.W.2d 633; Miller v. Collins, 40 S.W.2d 1062. (3) (a) Plaintiff's Instruction No. 2 in effect, told the jury that if the defendant's Society accepted and kept the dues paid by respondent and did not return the same, even if they were paid out of time, constituted a waiver on the part of the defendant of any question respecting the dues paid by plaintiff. Everett v. Ins. Co., 7 S.W.2d 463, l. c. 468; Kitzinger v. Barbers Union, 103 S.W.2d 547, l. c. 550; Bonnot v. Brotherhood R. R. Tr., 229 Mo.App. 519, 81 S.W.2d 360. (b) The right to demand payment of benefits on the part of the respondent and the duty of the appellant to pay the same arose when respondent finally lost his position with the railroad company. The honorary non-beneficial certificate was not involved in the case at all.

OPINION

SHAIN, P. J.

Appeal from the Jackson County Circuit Court. The plaintiff in this case alleges himself to be a beneficial member of the defendant corporation. The plaintiff alleges that the defendant corporation "was at all times herein mentioned engaged in the business of establishing and managing a fund for the payment of sums of money to its members, including this plaintiff, in the amounts and upon the contingencies hereinafter more particularly set out, and that in the carrying on of its said business the defendant issues contracts of insurance to its members whereby said members are insured against loss of their positions because of physical disability, as described in article 12, section 4, of the by-laws of said defendant, as follows:

"ARTICLE XII

"BENEFITS

"Section 4. Any member of this organization, after eighteen (18) months' continuous membership and in good and regular standing shall be eligible for benefits at the rate of Tewenty-five (25) cents for each member of this organization in good and regular standing, not to exceed however, the amount of Seven Hundred and Fifty ($ 750) Dollars, payable in a lump sum for 'loss of position,' as hereinafter defined, because of physical disability."

Plaintiff alleges defendant had its principal office in Pennsylvania, and solicits, issues and delivers policies of insurance in Missouri, and hires and maintains agents in Missouri who solicit members, collect dues and investigate, report and assist in settlement and adjustment of claims.

Plaintiff alleges membership of over eighteen months and alleges issuance of card of membership on March 31, 1924. Plaintiff further alleges that on the aforesaid date he was under the age of forty-eight, and had regular employment as member of a switching crew for the Missouri Pacific Railroad Company at Kansas City, Missouri, "and that he was free from any disease, ailment or physical defect known to him which, if known by his employer, might cause the loss of his position."

The plaintiff pleads all requisites of payment of all assessments and dues requisite to participation in funds from the twenty-five cent assessments, not to exceed $ 750 for 'loss of position' allowed for physical disability."

Plaintiff further pleads "that on or about the tenth day of March, 1934, while he was employed in the transportation department as switchman for the Missouri Pacific Railroad Company, and was so engaged in the actual, customary, authorized and routine duties of his employment, for which he was receiving the usual stipulated compensation, he suffered a serious and permanent injury to his back and spine and that the said injury rendered this plaintiff physically unable to resume or continue his said employment from and after the 31st day of May, 1934. Plaintiff alleges that by reason of his said injury, received as aforesaid, and as a direct result thereof, that he was thereafter discharged from and entirely and permanently relieved of his employment by his employer and that he thereby became entitled to the benefits set out in article 12, section 4 of the by-laws of the defendant organization, which are set out above. "

The plaintiff pleads further provision of the constitution and by-laws, as follows:

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