Lane v. Brotherhood of Locomotive Enginemen and Firemen

• Decision Date: 07 December 1937
• Citation: 73 P.2d 1396,157 Or. 667
• Parties: LANE v. BROTHERHOOD OF LOCOMOTIVE ENGINEMEN AND FIREMEN.
• Court: Oregon Supreme Court

73 P.2d 1396

157 Or. 667

LANE v. BROTHERHOOD OF LOCOMOTIVE ENGINEMEN AND FIREMEN.

Supreme Court of Oregon

December 7, 1937

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by Walter L. Lane against the Brotherhood of Locomotive Enginemen and Firemen, a fraternal benefit society. Judgment for plaintiff, and defendant appeals.

Modified and affirmed.

Plaintiff Walter L. Lane, a member of the local lodge, held a certificate from defendant Brotherhood of Locomotive Enginemen and Firemen, a fraternal benefit society contracting for a payment of $15 per year to pay $1,000 on his death, and certain sums for loss of hand, foot, or eye also entitling him to receive $50 per month when totally and permanently disabled. Claiming to be totally disabled by reason of an accident on a certain date, Lane brought an action against the defendant.

At the time of the trial plaintiff was 49 years of age. He had a fourth grade education, and in his younger life he worked as a farm hand. At the age of 21 years he went to work for the O. W. R. & N. Company and held the positions of boilermaker helper, engine wiper, fireman, and engineer. In 1918 he became an engineer and worked in that capacity for six or seven years. In 1912 he became a member of the defendant Brotherhood and was issued a certificate of membership in the organization at that time. In 1920 he was given an additional certificate of membership, which certificate was made a part of the amended complaint. The society maintained a local lodge at La Grande at all of these times and did business in La Grande, and plaintiff joined the organization at La Grande and at all times paid his dues and assessments as a benefit member at La Grande, Or., and since entering the order he has been a member in good standing. He entered into his agreement with the defendant at La Grande and his certificate of membership was given to him at that place. At all times since entering the order he has performed his part of the membership agreement and paid his dues and assessments. He paid for total disability benefits from the time he became a member, $1.25 per month. It is admitted by defendant that plaintiff has been, at all times since entering the order, a member in good standing, including the benefit department.

On May 7, 1932, while firing a locomotive engine for Engineer Hutchinson and performing his duties in taking on water for the engine, he severely injured his back. At Pendleton, Or he was examined by an O. W. R. & N. Company physician, and later that day was taken to La Grande by automobile and placed in the care of Dr. C. S. Moore, an O. W. R. & N Company physician. He was confined to his bed at home and at the hospital for three and one-half months, after which he was able to walk around to some extent by the aid of a steel brace, but he was forced back to bed again in April, 1933 for four and one-half months, when he realized that he was permanently and totally disabled, and he filed his claim for permanent and total disabilities in proper manner with the defendant Brotherhood, within the time and as provided by the constitution and by-laws of the order.

It is alleged that on or about August 15, 1934, the general secretary and treasurer disapproved plaintiff's claim, and that the various appeals taken by plaintiff were not disaffirmed as the result of any lack of formality in the taking of said appeals, but were passed upon and disaffirmed in each instance upon the ground that plaintiff was not entitled to $50 per month, as provided by article 8, section 23, subdivision (d), of said constitution, said decisions holding that plaintiff was not permanently and totally disabled.

Defendant alleged in its answer that physical examinations of plaintiff were made by numerous medical physicians, and after a thorough examination and consideration of plaintiff's condition, the general secretary and treasurer adjudged and found that the plaintiff was not permanently and totally disabled. Plaintiff by reply denied these allegations of the answer, except that plaintiff admitted the general secretary and treasurer "found that the plaintiff was not permanently and totally disabled."

The beneficiary certificate provides: "That Walter L. Lane *** is entitled to all the rights, privileges and benefits of membership in said Brotherhood of Locomotive Firemen and Enginemen ***." The certificate also provides: "That the Constitution now in force, or as may be hereafter altered or amended, is and shall be a part of this contract in the same manner and to the same extent as if said Constitution, or alterations or amendments thereto, were written herein."

The constitution of the Brotherhood of Locomotive Enginemen & Firemen provides in part as follows:

"Article 8, Sec. 23(a). In this Constitution of the Brotherhood of Locomotive Firemen and Enginemen, total and permanent disability shall be construed to mean such a state of bodily incapacity as shall wholly and permanently prevent a member from engaging in any occupation, profession or business or from performing or directing any work for remuneration or profit but shall not include claims resulting solely from old age.

"Article 8, Sec. 23(b). A member who believes he is entitled to the benefits from the Disability Fund, as provided for in this section, shall file with the General Secretary and Treasurer, through the recording secretary of his lodge, an application on forms under oath, furnished by the Grand Lodge and prepared by the International President and General Secretary and Treasurer. If the General Secretary and Treasurer is satisfied that the application furnishes sufficient proof that the member is totally and permanently disabled, he shall, as soon as convenient, cause an examination of the applicant to be conducted at the place where the applicant is located, or he may have the applicant come to a more convenient place for such examination." "Article 8, Sec. 23(d). A member in good standing in the fund who is adjudged by the General Secretary and Treasurer to be totally and permanently disabled, except on account of consumption of the lungs, shall on the first day of every month after such a decision, be entitled to receive fifty dollars ($50.00) for each full calendar month from the date the application is received at the Grand Lodge office, and a proportionate amount for a fraction of a calendar month, until the disabled member's death, or until he is adjudged no longer entitled to benefit.

"Article 8, Sec. 18. (Must Give Notice of Intention to Bring Action.) If a claim has been disapproved by the General Secretary and Treasurer and the applicant is dissatisfied and desires to bring action against the Brotherhood, he shall first exhaust all remedy by appeal provided by the laws of the Brotherhood, and thereafter he shall, before bringing action, give the General Secretary and Treasurer Thirty (30) days' notice in writing of his intention to bring such action."

"Article 8, Sec. 23(f). Members shall have the right to appeal from a decision of the General Secretary and Treasurer, as provided in Article 2, Section 5, Paragraph (LL)."

"Article 2, Sec. 5(LL). In all cases where applications concerning participation in any of the insurance, or pension departments, or for benefits or allowances from such departments, are rejected, the applicant or lodge of which he is a member shall have the right of appeal to the International President and the Board of Directors, the decision of the Board of Directors to be final."

"Article 8, Sec. 19. (Limitation of Right of Action of Beneficiaries.) *** and all right of action shall be absolutely barred for any claim for total or permanent loss ***, or for total and permanent disability, as provided in the Constitution, unless claim is filed within six months from the date the member acquires knowledge that he *** is totally and permanently disabled as provided in the Constitution. And such action against the Brotherhood shall likewise be absolutely barred unless commenced by the claimant in some court of competent jurisdiction within six months after the final rejection of the claim by the highest tribunal authorized by the laws of the Brotherhood to consider and pass upon same."

"Article 17, Sec. 4(f). All appeals from decision on grievance shall be made in the order mentioned within ninety (90) days from date each decision is made effective. Appeals not made within ninety (90) days after decision is in effect will not be entertained unless it is clearly shown that the cause of such delay was no fault of the member making the appeal."

The defendant interposed a demurrer to the complaint and contends for the same rule in regard to the instructions to the jury, namely, that plaintiff is required to show that the general secretary and treasurer of the order should adjudge that the plaintiff is totally disabled by reason of an accident, and that the court erred in overruling defendant's demurrer to the amended complaint by reason of a lack of an allegation in the amended complaint that plaintiff had been adjudged totally and permanently disabled by the general secretary and treasurer, and that the amended complaint did not state a cause of action, and defendant makes a similar contention throughout the case.

The trial court rendered a judgment on the verdict in favor of plaintiff against the defendant for the sum of $2,387.50, and the further sum of $500 attorneys' fees and plaintiff's costs and disbursements. Defendant appeals.

C. R. Eberhard, of La Grande (Cochran & Eberhard, of La Grande, on the brief; Harold C. Heiss and Russell B. Day, both of Cleveland, Ohio, of counsel), for appellant.

H. L Hess, of La Grande (Green & Hess, of La Grande, on the...