Keith v. Chi., B. & Q. R. Co.

• Decision Date: 04 June 1908
• Docket Number: No. 15,163.,15,163.
• Citation: 82 Neb. 12,116 N.W. 957
• Parties: KEITH v. CHICAGO, B. & Q. R. CO. ET AL.
• Court: Nebraska Supreme Court

82 Neb. 12

116 N.W. 957

KEITH

v.CHICAGO, B. & Q. R. CO. ET AL.

No. 15,163.

Supreme Court of Nebraska.

June 4, 1908.

Syllabus by the Court.

Railway employés only were permitted to join the Relief Department of the defendant company, an institution organized to pay disability benefits to members. The contract for benefits provided: “The word ‘disability’ shall be held to mean physical inability to work.” Held, that the words “physical inability to work” mean inability to perform such labor as the injured member was engaged in at the time of his injury, or similar labor which would enable him to earn wages equally as remunerative.

Under the provisions of such contract, if an injured member of the Relief Department recovers so that he is able to perform such work as is contemplated in the contract, or similar work equally as desirable and remunerative, then the obligation of the defendants to pay disability benefits ceases. But recovery sufficient to enable him to earn much smaller wages at some other employment, or employment procuredthrough the charity or indulgence of friends or relatives, when, in fact, he has not recovered from his disabilities, is insufficient to release defendants.

Commissioners' Opinion. Department No. 1. Appeal from District Court, Douglas County; Estelle, Judge.

Action by Hattie Keith, administratrix of Gant Keith, against the Chicago, Burlington & Quincy Railroad Company and the Chicago, Burlington & Quincy Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Greene, Breckinridge & Matters and W. A. Hatterouth, for appellants.

Smyth & Smith, for appellee.

EPPERSON, C.

This action was instituted by Gant Keith in his lifetime, and later prosecuted by the administratrix of his estate, against the Chicago, Burlington & Quincy Railroad Company and the Chicago, Burlington & Quincy Railway Company to recover $638.70, alleged to be due upon a certificate of membership in the relief fund of the Burlington Voluntary Relief Department for disability benefits at the rate of 75 cents per day from December 10, 1901, to April 4, 1904, at which time the said Gant Keith died. On September 11, 1900, the deceased entered the employ of the railway company as a switchman, and became a member of the Relief Department. Three days later, while thus employed, he received an injury from which it appears he never fully recovered. He was entitled to receive from the relief fund $1.50 per day for 52 weeks, and thereafter 75 cents per day during the continuance of his disability. He received such relief until December 10, 1901, at which time the defendants refused further payment, claiming that his disability had then ceased. At one time Keith attempted to resume his duties as a switchman, but was unable to do so. It is undisputed that he was disabled until December 10, 1901. At that time he reported for work to his employing officer, who tendered him some position as a utility man at the rate of $35 per month. This employment Keith refused, either because he was unable to do the work or because the wages offered were unsatisfactory. He then obtained employment as a bartender in his brother's saloon until April, 1902, and thereafter until his death was in the employ of one Dwyer, who succeeded his brother in the saloon business. While in the employ of his brother and for the first year of his employment by Dwyer he received $50 a month wages, and thereafter $60 per month. During all this time Keith could not place the injured foot upon the ground naturally. He was required to use a crutch or a cane. The toes of the foot stood upright. Every night the foot was swollen. But as bartender he was able to spare his foot, not being required to stand upon it during all the time he he was on duty. The evidence shows that he kept a chair behind the bar, which he used whenever he could; that he was enabled a part of the time at least to use a footrest. By reason of the injury he was required to quit work occasionally, sometimes one day and sometimes more, and some days he would have to quit for a short time only. His employer testified, in substance, that he was not a good man so far as his work was concerned, but from a business standpoint that he was very well thought of; that he took a good deal of interest in the place; that he had many friends throughout the country, and was a good talker. In the court below the plaintiff recovered judgment in the full amount claimed, and defendants appeal.

The rights of the parties depend upon the construction of a part of one section of the regulations of the Relief Department in force at the time deceased became a member, and which is as follows: “Wherever used in these regulations, the word ‘disability’ shall be...