Mulcahey v. Brotherhood of Ry. Trainmen

• Decision Date: 03 December 1934
• Citation: 79 S.W.2d 759,229 Mo.App. 610
• Parties: JAMES B. MULCAHEY, RESPONDENT, v. BROTHERHOOD OF RAILWAY TRAINMEN, APPELLANT
• Court: Kansas Court of Appeals

79 S.W.2d 759

229 Mo.App. 610

JAMES B. MULCAHEY, RESPONDENT, v. BROTHERHOOD OF RAILWAY TRAINMEN, APPELLANT

Court of Appeals of Missouri, Kansas City

December 3, 1934

Appeal from Circuit Court of Pettis County.--Hon. Dimmitt Hoffman Judge.

REVERSED.

Judgment reversed.

Harlan Crawford & Harlan for respondent.

Tom J McGrath and Montgomery, Martin & Montgomery for appellant.

OPINION

BLAND, J.

This is an action to recover the sum of $ 1875 alleged to be due the plaintiff under the terms of a beneficiary certificate issued to him by the defendant. There was a verdict and judgment in favor of plaintiff in the amount sued for and defendant has appealed.

The facts show that defendant is an unincorporated fraternal beneficiary association with its Grand Lodge at Cleveland, Ohio; that membership in the association is restricted to railway trainmen actually employed as such or in railroad yard service; that plaintiff was a member of the association and held the certificate therein which is sued upon. The certificate provides for the payment of the sum of $ 1875 to the plaintiff, if, while, in good standing, he should "suffer the complete and permanent loss of the sight of both eyes."

In June or July, 1932, and during the time that plaintiff's insurance was in good standing, he suffered a heat stroke while working as a switchman in the Missouri Pacific Railroad Company yards in Sedalia. He continued to work as a switchman for that company until September, 1932, at which time he was let out of service on account of the condition of his eyes. He claims that in the month of September, 1932, he suffered the complete and permanent loss of the sight of both of his eyes. The policy provided that insured should "pay all dues and assessments imposed upon him within the time specified by the constitution and general rules. Any failure to make such payment of either grand or subordinate lodge dues, or any general or special assessment levied, shall at once forfeit any and all rights hereunder, and this certificate shall become null and void without notice to the assured."

The evidence further shows that plaintiff paid his assessments until the first of July, 1933, but has paid no assessment since that time. Under the terms of the contract the policy terminated, in so far as future coverage is concerned, as of that date. [Springfield Steam Laundry Co. v. Ins. Co., 151 Mo. 90, 52 S.W. 238; Ashbrook v. The Phoenix Mut. Life Ins. Co., 94 Mo. 72, 6 S.W. 462; Darby v. Northwestern Mut. Life Ins. Co., 293 Mo. 1, 239 S.W. 68; Elms v. Life Ins. Co., 211 Mo.App. 514, 231 S.W. 653.] However, plaintiff claims a waiver of the termination or forfeiture.

The case was tried on the 7th day of March, 1934. Plaintiff testified that from the date of his becoming overheated his eyes began to fail; that he obtained glasses and went back to work and remained thereat until he was discharged on the 27th or the 28th day of September, 1932; that he had done nothing since; that he lives on a small farm near Sedalia. Plaintiff further testified that after he ceased working for the railroad company his "eyes were pretty bad, but worse now;" that he could not see to do the work of a switchman; that "I can't see hardly anything and my eye-sight is getting worse every day; I can tell that much, it's a good deal worse now than it was a year ago or six months ago or three months ago." . . . "No sir, if I got out to try to do any little thing my eyes just jumps and I have to close them, everything goes dark. I have to get in the house and lay down;" that he could not see to do any work and could not read; that if he tried to do any lifting his eyes would jerk; that he could not use them and any strain upon them made them worse; that he was wearing glasses; that without glasses he could not "see at all;" that he could not "see to get around."

On cross-examination he testified that "I carry in a little wood and look around after my cows; that is about all I do. I don't milk her;" that he was unable to cut wood; that the condition of his eyes had "been getting worse as time goes on;" that there was some change in the past three months; that he thought there had been a great deal of change; that his eyes were "getting worse all the time."

His deposition was taken on February 12, 1934, which was about a month prior to the time the case was tried. He was asked concerning certain testimony that he gave in his deposition. He testified that when his deposition was taken he could see people "sitting across the table;" that he was then and is now able to read big print. At the trial, upon being handed the beneficiary certificate sued upon he was able to read the heading thereon, "Brotherhood of Railroad Trainmen" in big print but was unable to read any other part except the words "issued to." "Q. Don't you recall reading from the face of this beneficiary certificate? A. I can't read it now. My eyes go and come. Q. But you recall reading the form? A. I just read a few lines." He testified at the trial that he was not able to "get around the streets;" that he does not walk on the streets by himself; that "I can get around on the sidewalk, but I am afraid to cross the street; I can't look sideways and if I go to cross I turn this way or this way and look plumb around;" that he is afraid of automobile traffic at the intersections; that he could tell where the intersections were when he reached them; that "I can manage to get down on the sidewalks. . . . I guess at . . . the sidewalks, curbings and buildings . . . a great deal;" that he always looked straight ahead and did not look to the right or the left; that he could step from the sidewalk "if I look straight ahead and see the sidewalk." Asked if his eyes had gotten materially worse since February 12, he replied that he thought they were getting worse every day. "Q. On the 12th day of February you were able to see to get around on the sidewalk? A. I got around on the sidewalks; I can get around now. Q. And you can see people you meet in the street? A. Why, I can see people, yes. Q. And you can see the cars parked along the curbing? A. I can tell there are cars there. Q. There isn't any danger of you running into anybody or into anything while walking out on the sidewalk? A. I have run into people on the sidewalks;" that he could see people when passing on the sidewalk, "but I can't recognize them, . . . I can't see when I get to the intersection;" that, "I can see objects moving as far as a block," but he cannot distinguish what they are; that his house was half a block, or less, from his barn and that he could see his cows in the barn lot, but he could not "recognize them as cows;" that he could not tell a black cow from a red cow; that he could recognize objects moving along the sidewalk across the street as persons but he could not tell whether such persons were men or women. He supposed they were men or women because he did not expect any other creatures on the sidewalk; that he could not recognize a person across the street; that his trouble was not only with close vision but with distant vision; that he tries to read the headlines in the newspapers and sometimes he can and sometimes he cannot; that at times "I can read a little bit, other times I can't read a thing;" that he saw the papers "maybe once a week or once a month, sometimes my vision is all right, but other times I am plumb blind." Later he testified that he did not mean that his vision was all right but that at times he could "read a little bit (of the headlines), other times I can't read a thing." When certain of his deposition was read to him wherein he testified that he could see and recognize a cow in his lot while he was at the house, he testified (at the trial), "Yes, I knowed them cows were over there and see a object;" that he could see the cow but he could not tell "which one was which."

He was unable to recognize or identify the proofs of loss that he had submitted to the defendant, because his daughter-in-law had made them out he could not recognize his signature. He testified that he remembered signing the proofs. On re-direct examination he testified that all he did around the house was "just carry in a little wood;" that he was required to hire a man to look after the farm because the witness could not "see to take care of my strawberries and stuff;" that he could not take care of these things "because if I do anything like that, leaning over or working, my eyes practically go to the bad altogether and I can't see nothing, I have to go--tried it, but I couldn't see only about five minutes or so. I would just go plumb blind and have to go sit down some place and cover my eyes up." He also testified that he could not identify one of the papers contained in the proofs of loss "because now when I have been sitting here so long and under the strain, my eyes are just practically gone;" that he could only read the headlines in the newspapers for about five or six minutes, and then "It all blurs and I have to put it down and rest my eyes awhile, then pick it up and look at it again in a minute or two, then have to lay it down. I can't continue at all."

His attorney held some object twenty feet away from the witness. The witness testified that he could see the hand of the attorney and could see something black in his hand. When two persons were seated in the other room twenty-five feet away from the witness he testified that he could see two men sitting there; that he could see that one of them was black-headed and the other was bald-headed or had a shiny head, and that was all that he could see; that while he was at his house he could see an animal in his barn yard but he could not tell whether it was a cow or a horse. Counsel for plaintiff...