Flaiz v. Chicago, Burlington & Quincy Rairoad Co.
| Decision Date | 04 April 1916 |
| Citation | 184 S.W. 917,194 Mo.App. 472 |
| Parties | ISABEL FLAIZ, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Argued and Submitted March 9, 1916.
Opinion on Motion for Direction of Judgment Filed May 16 1916.
Appeal from St. Louis Circuit Court.--Hon. Leo S. Rassieur, Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.--The petition in this action avers that the defendant company maintains a department of service for the establishment and management of a fund known as the Relief Fund, for the payment of a definite amount to the relatives or beneficiaries of its employees, who are killed and who have in accordance with the provisions of the department contributed to the Relief Fund and become a member thereof; that this department has been maintained by defendant since and prior to March 15, 1889, and continuously down to the date of the institution of this action (November 18, 1910), and that the defendant company guaranteed the fulfillment of the obligations of the Relief Department evidenced by a memorandum of agreement entered into between the defendant company and other affiliated companies, by which they jointly maintained the Relief Department and by which each became responsible for and guaranteed the payment of such amounts as might become due from that department to the beneficiary of the employees of the respective roads in case of the death of the employees, who had become members of and contributed to the Relief Fund in accordance with its provisions and regulations. It is further averred that one Marvin M. Matthews, on November 3, 1899, was an employee of the Hannibal & St. Joseph Railroad Company, that company affiliated with the defendant company, and that Matthews, in accordance with the regulations of the Relief Department and because of his employment with the Hannibal & St. Joseph Railroad Company, on November 3, 1899, became a member of this Relief Department, called "Burlington Voluntary Relief Department;" that afterwards but prior to February 26, 1906, Matthews ceased to be an employee of the Hannibal & St. Joseph Railroad Company and was transferred to and entered upon the service of, and thus became an employee of, the defendant company and so continued a member of the Relief Department and from the date of the change in employment until his death, was as well an employee of the defendant company; that under and pursuant to the agreement between the parties the defendant company agreed to pay to the beneficiary of Matthews the sum of $ 1000 in case of his death, the payment to be made under and pursuant to the regulations of the Relief Department to the fund of which Matthew regularly contributed; that he was in good standing in this department up to and including February 26, 1906, on which date he was killed, having faithfully performed all the conditions and made all the payments up to the date of his death, that resulting from his having been run into by an engine operated by defendant company, the engine then under the temporary control of one Stone, a hostler's helper in the employ of defendant company; that plaintiff, who had been the wife and was the widow of Matthews (but who it appeared had since intermarried with one Flaiz), brought her suit in the circuit court of Audrain county, this State, against the defendant company and Stone and obtained a judgment against both in the sum of $ 9000, which judgment was reversed by the Supreme Court of this State as to the defendant company but affirmed as to Stone, the latter, it being averred, then and now insolvent and the judgment against him worthless. The petition further sets out that by a regulation (No. 63) of the Relief Department in force during the time of the membership of Matthews and still in force, it is, among other things, provided:
"If any suit shall be brought against the company or any other company associated therewith as aforesaid, for damages arising from or growing out of injury or death occurring to a member, the benefits otherwise payable and all obligations of the Relief Department and of the Company created by the membership of such member in the Relief Fund shall thereupon be forfeited without any declaration or other act by the Relief Department of the Company; but the superintendent may, in his discretion, waive such forfeiture upon condition that all pending suits shall first be dismissed."
Setting out this regulation, it is averred that it is illegal, void and of no effect, and that under the membership of Matthews in the Relief Department his beneficiary was entitled to the sum of $ 1000 in case of his death. Averring that plaintiff was and is the beneficiary under the membership and as such entitled to the sum of $ 1000, which the defendant company agreed to pay, and that demand for the payment of the amount due plaintiff was made and refused, the demand, it being averred, having been made soon after the death of Matthews in 1906, and again specifically on March 9, 1910; that the payment was refused by both the Relief Department and the defendant company, and that no payment had been made to plaintiff by either the Relief Department or by the defendant company, judgment is demanded against the defendant railroad company for $ 1000, together with interest at the rate of six per cent per annum from and after March 6, 1910, and for her costs.
Defendant filed an amended answer to this, which was demurred to and the demurrer overruled. Thereupon the defendant filed its second amended answer to the petition. In this answer admitting that it was a corporation engaged in operating a railroad through Audrain county, Missouri, and that plaintiff was the wife of Marvin Matthews, and that he died from injuries received by him, the answer denies all the allegations in the petition except as thereinafter admitted. It is then pleaded, in substance and confining ourselves to the most material allegations, that plaintiff ought not to recover because at the time of the death of her husband, the defendant had been engaged in the operation of several thousand miles of railroad for which purpose it was compelled to and did employ several thousand men; that the work of operating a railroad is hazardous to life and limbs of employees, and that because of the high rate of premiums charged railroad employees by insurance companies, it is practically beyond the means of the employees to obtain insurance in such companies; that for the purpose of furnishing aid and relief to its employees and their families, in the event of sickness, injury or death, defendant had established the Relief Department referred to in the petition, of which Matthews was a member while an employee of the Hannibal & St. Joseph Railroad Company, as well as afterwards while an employee of defendant, being a member of the second class; that he accepted all the conditions of membership in the Relief Department and by virtue of such membership became and was entitled to receive the sum of two dollars a day for such time as he might be disabled on account of sickness, and in case of his death, his widow would become entitled to receive the sum of $ 1000, if, after his death, she elected to accept the same and thereby released the defendant from any liability on account of the death of her husband, or that plaintiff, as such widow, was entitled to elect to refuse the above-mentioned death benefit and to take in lieu thereof a cause of action at law against the defendant for damages arising from the death of her husband, but that under the regulations of the Relief Department she could not take both, it being provided that if she refused to accept the death benefit and brought suit against the defendant on her cause of action for the death of her husband, by virtue of the suit, she waived any right she might otherwise have to thereafter accept, receive or recover on the death benefit from the Relief Department. Averring that defendant operated this Relief Department in accordance with the terms of the contract, and that the fund was created by the voluntary contributions of members and by interest to be paid into it by defendant on balances in the fund in its hands, it is averred that the defendant guaranteed the sufficiency of the fund to pay all disability and death benefits which might accrue in favor of the members and their families and became liable to pay these benefits out of its own treasury to make up deficiencies in the Relief Fund, if any should occur; it is further averred that defendant became responsible for all monies belonging to this Relief Department, as also to pay interest thereon into the fund, and to maintain and operate that department at its own expense, all of which duties it performed, as it is averred. Averring that the husband of plaintiff came to his death while in the employ of defendant, on February 26, 1906, as stated, it is averred that by virtue of the contract between the husband of plaintiff and its Relief Department, plaintiff became entitled to elect which of two things she would do, that is to say, to refuse to receive the death benefit of $ 1000 from the Relief Fund and to prosecute an action at law against defendant for damages on account of the alleged wrongful death of her husband, or she became entitled to elect to receive and accept the death benefit and thereby release the defendant from any cause of action she might have against it for damages on account of the death of her husband; that long after plaintiff became entitled to elect, to-wit, about May 17, 1906, and within six months after the death of her husband, plaintiff made her election and refused to accept the death benefit of $ 1000 and elected to prosecute her cause of action against defendant for...
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