Grand Lodge, Brotherhood of Railroad Trainmen v. Smith

• Decision Date: 10 July 1922
• Docket Number: 22736
• Citation: 92 So. 837,129 Miss. 738
• Court: Mississippi Supreme Court
• Parties: GRAND LODGE, BROTHERHOOD OF RAILROAD TRAINMEN v. SMITH

92 So. 837

129 Miss. 738

GRAND LODGE, BROTHERHOOD OF RAILROAD TRAINMEN v. SMITH

No. 22736

Supreme Court of Mississippi

July 10, 1922

1. INSURANCE. Under constitution of order providing that certain claims should be addressed to order's benevolence, there was no legal liability.

Where a beneficiary certificate declared the holder entitled to participate in the beneficiary department to the amount set forth in the constitution, which provided that claims for disability other than certain specified claims should be addressed to the systematic benevolence of the order, and not be made the basis of any legal liability, and that this provision might be pleaded in bar of any suit or action, the order was not legally liable to the member for a disability to which such provision applied.

2 INSURANCE. Member held not entitled to recover dues paid subsequent to disability for which claim disallowed.

Under the constitution of a benefit society, providing that claims for certain disabilities should be addressed to the benevolence of the order, and that, if allowed, payment thereof should be considered a surrender and cancellation of the certificate, where such a claim was disallowed the member could not recover back the dues paid subsequent to the injury to keep the certificate alive, as these payments were for insurance which he obtained.

HON. W H. POTTER, Judge.

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

Action by Ike Smith against the Grand Lodge, Brotherhood of Railroad Trainmen. From a judgment for plaintiff, defendant appeals and plaintiff brings a cross-appeal. Reversed and judgment rendered.

Reversed.

Alexander & Alexander for appellant.

We come now to the main point in this case, that is to say whether the plaintiff (appellee) is bound by the plain provisions of section 68, and whether section 70 shall be held to mean exactly what it says. In the case of Pool v. Brotherhood of Railway Trainmen, 143 Cal. 650, 77 P. 611, the sections of the constitution relied upon are sections 45 and 46 which correspond exactly to sections 68 and 70 respectively of the same defendant in the case at bar. The court said: ". . . But he (plaintiff) bases his claim upon section 46, which reads as follows: 'Benevolent claims' (quoted). 'Plaintiff notified defendant of his disability, and furnished proofs in due form; but defendant through its benefit board has refused to pay plaintiff or to allow his claim in any sum whatever. The nonsuit was properly granted. Plaintiff agreed that his claim should be addressed to the systematic benevolence of the Brotherhood, and shall in no case be made the basis of any legal liability on the part of the brotherhood.' We must apply the ordinary rules governing conditions to the agreement made by the defendant with plaintiff in this case. He was guaranteed to be paid a certain sum in case of total disability from the causes set forth in section 45 of the constitution. He paid for and was insured against the loss of a hand or a foot or of both eyes. His contract was absolute in case his disability had been permanent and caused in the manner defined in the last cited section."

In other cases the claim was of purely benevolent nature. The beneficiary board had the power to allow it or reject it, but no duty was imposed upon such board to allow it. If the board reject such claim, the claimant may have it acted upon by the next biennial convention and the convention may make such disposition of it as may be deemed just and proper. We know of no reason why such contract may not be made. The plaintiff was not compelled to become a member of defendant, but having become such member he must show a legal liability within the terms of his contract before he can recover in court.

"This is not a case of an arbitrary adjudication by the officer of a benevolent association declaring forfeiture of property, or of vested rights. It is simply the rejection of a claim that the lodge might in its charity have allowed, but it was agreed that such claim should be in the discretion of the lodge and not the basis of legal liability. Plaintiff may have been unfortunate in becoming a member of a brotherhood that is not benevolent, but the court cannot undo his actions in this regard." The latest authority upon this point is the recent case of Robinson v. Brotherhood of Railroad Trainmen, 92 S.E. (W. Va.) 730. This case is exactly in point, deals with the same defendant, and construes the identical sections involved in the case at bar.

"The court considered the contention that provisions in similar certificates which operate to oust the jurisdiction of the courts are invalid, but proceeded to cite the well-known exception to such principle to the effect that such provisions may be held invalid. If by its contract the society assumes an absolute legal obligation to pay a definite sum in a certain event, or under certain conditions, and does not merely engage to pay such benefits as may be awarded by its officers." The court then referred again to the same contention and concluded as follows: "But the claim here asserted falls within another distinct class of cases requiring the application of a different rule. The basis of the difference lies within the voluntary character of the obligation assumed by defendant, as evidenced by section 70 of its constitution which is expressly made a part of the contract sued on."

The court quoted at length with approval from the case of Pool v. Brotherhood of Railroad Trainmen, supra, and concluded as follows: "It is difficult to perceive if a different construction were adopted, upon what principles of law the exact nature of plaintiff's rights and the measure of his recovery could be determined. The question is not one of procedure merely, but of the very existence of the right asserted. But no legal right is shown; the courts cannot make a contract for the parties where they have made none for themselves.

It is deemed unnecessary to go further with the citation of authority upon this precise point and the above case is respectfully referred to this court in its entirety inasmuch as it discusses the exact question herein involved thoroughly and with many citations.

As said in the Robinson case last cited, it would be necessary in order to afford relief to the appellee to rewrite the contract between the parties as found in section 68. It is not impossible that a provision that suit should not be brought for and on account of the injuries therein enumerated may be invalid. But, such is not the case here. Section 70 does not extend or add to the contractual rights and duties of sections 68. Plaintiff has no more right to sue and demand payment for an injury not particularly described, than he would have to demand payment for the loss of his house by fire. Let us suppose that section 70 was not a part of the constitution; certainly no liability would follow an injury to plaintiff's spine. Section 70 gives no rights, but only opportunities. How can it justly be said that the appellant by making mention of its benevolent purpose to aid its members in case of injury contracted for, assume a definite legal liability to do so.

Nor is the agreement of the defendant, that he will not distort the benevolent charity of the appellant into a definite contractual liability, invalid. Appellee has merely agreed to refrain from doing what he had no legal right to do. The present condition of the appellee may be distressing; the absence of legal rights to relief may constitute a disappointment but he is in the position of one, who has taken out insurance upon his home against fire and tornado and suffered the loss of same by earthquake. If appellee had desired protection against this sort of accident which he has suffered, it was his simple duty and privilege to so contract. He has no right now, in the face of his solemn agreement to the contrary, to twist the charitable purposes of appellant into a definite contract for the payment of a definite sum.

Section 71 states that a member, who has suffered an injury not the subject of contract, and who desires to present such matter to the systematic benevolence of the brotherhood shall "petition his lodge in writing." In other words he may petition, but not demand. To hold otherwise would mean that the appellant, in a careful and clearly expressed endeavor to deny the right to demand payment in such cases as that of appellee, has by its very attempt to separate such cases from those involving contract rights suffered the very disadvantage which it thus sought to protect itself against. In other words, its denial of the right would be thus taken to be the creation of such right.

The second assignment of error deals with the introduction, over the objection of appellant, of a copy of the "Railroad Trainmen" which include a list of benefits which had been paid under the benevolent provisions of section 70. It is not thought that authority is needed to support our contention as to its inadmissibility. To show that other claims have been considered as justifying the exercise of the charity of the appellant is not proof as to the merits of the claim of appellee. Such evidence was also irrelevant because in the absence of proven fraud, the beneficiary board's conclusions were final. If such testimony could have proved anything, it would be merely that such beneficiary board does not act arbitrarily, and does not take up such cases as opportunities, for the exercise of its benevolent charity.

We respectfully submit that the demurrer should have been sustained and that upon the trial of the case below, the court should have granted the motion of appellant to exclude plaintiff's testimony and also for a peremptory instruction, and...