Kinney v. Baltimore & O. Employes' Relief Ass'n

• Decision Date: 28 November 1891
• Citation: 14 S.E. 8,35 W.Va. 385
• Court: West Virginia Supreme Court
• Parties: Kinney. v. Baltimore & O. Employes' Relief Ass'n.

14 S.E. 8

35 W.Va. 385

Kinney.

v.Baltimore & O. Employes' Relief Ass'n.

Supreme Court of Appeals of West Virginia.

Nov. 28, 1891.

Railroad Relief Association—Contract to Arbitrate—Right to Sue.

1. A provision in a contract that all differences arising under it shall be submitted to arbitrators, thereafter to be chosen, will not prevent a party from maintaining a suit, in the first instance, in a court to enforce his rights under it.

2. A corporation organized to afford relief to employes of certain railroad companies, in one article of its constitution provides relief to those injured "by accidents while in the discharge of duty, and in the service of the Baltimore & Ohio Railroad Company, or of any other railroad company whose employes shall be admitted to the privileges of membership;" and in another article, "while in the discharge of duty in the service of either of the companies aforesaid." An employe, who from 4 to 15 minutes before had quit work for the day, while going home from work, in crossing the railroad tracks, was killed by cars. Held, that he is entitled, as a member of the association, to relief from it,

(Syllabus by the Court.)

Appeal from circuit court, Tavlor county

Action by Eliza Kinney against the Baltimore & Ohio Employes' Relief Association. Judgment for plaintiff, and defendant appeals. Affirmed.

John A. Hutchinson, for appellant.

M. H. Dent, for appellee.

Brannon, J. Joseph E. Kinney was a member of the Baltimore & Ohio Relief Association, a corporation under the laws of Maryland, having for its object to provide relief to employes of the Baltimore & Ohio Railroad disabled by accident, sickness, or old age, and at their deaths for their families; and, having been killed by being crushed between cars at Grafton on 29th October, 1884, his mother, Eliza Kinney, who had been designated as the beneficiary of his membership or policy, in case of his death, brought a suit in the circuit court of Taylor county to compel the payment by said association of $500 as the amount which she claimed as her right under its constitution, and, the court having allowed it to her, the defendant appealed to this court.

The first point of objection made by the appellant to the decree is that the plaintiff could not sue because of article 25 of the constitution of the association, which reads thus: "Should any difference arise between any claimant for the benefits herein set forth and the committee of management, it shall be submitted to three arbitrators, one to be chosen by each party, and the third by the two thus chosen, whose decision shall be final." Does this article forbid Mrs. Kinney from resorting to a court of justice to enforce her demand, and limit her to arbitration? The common-law doctrine is thus laid down in 2 Tuck. Comm. Laws, 31: "Though parties, on entering into a contract, agree that, if a difference should arise between them, they will refer it to arbitrators, yet a bill for specific performance of such agreement will not lie, (Street v. Rigby, C Ves. 818; Gourlay v. Duke of Somerset, 19 Ves. 431;) and it seems an action at law will not lie for refusal to nominate an arbitrator in pursuance of a covenant to refer, (Browning v. Wright, 2 Bos. & P. 13.) Nor is an agreement to refer a bar to a suit or action, though, if the party sues contrary to his bond of submission, he is liable to an action for damages. Mitchell v. Harris, 2 Ves. Jr. 132. Nor can a party, by an agreement to refer, deprive himself of right to apply to a court of equity. Nichols v. Chalie, 14 Ves. 271. Indeed, a mere...