Neill v. Order of United Friends

• Decision Date: 26 May 1896
• Citation: 149 N.Y. 430,44 N.E. 145
• Parties: NEILL v. ORDER OF UNITED FRIENDS.
• Court: New York Court of Appeals Court of Appeals

149 N.Y. 430

44 N.E. 145

NEILL

v.ORDER OF UNITED FRIENDS.

Court of Appeals of New York.

May 26, 1896.

Appeal from supreme court, general term, Second department.

Action by Thomas Neill, Jr., against the Order of United Friends. From a judgment of the general term (28 N. Y. Supp. 928), reversing a judgment for defendant, it appeals. Affirmed.

M. W. Van Auken, for appellant.

W. F. O'Neill, for respondent.

HAIGHT, J.

This action was brought to recover the sum of $1,500 upon a certificate of membership issued to plaintiff by the defendant, a duly incorporated domestic insurance association. Under the by-laws, he is entitled to recover that sum when, by reason of disease or accident, he becomes permanently disabled from following his usual, or some other, occupation. The plaintiff's usual occupation was that of a railroad brakeman, and, while in the discharge of his duties as such, he was pushed from his car by a tramp, and so severely injured that amputation of one of his legs became necessary. His injury has disabled him to such an extent that he can no longer pursue his usual occupation. For several months he was out of employment, but of late has been engaged in watching a milk car at Weehawken, but at much lower wages. It is contended that his disability, though permanent, is not such as to prevent him from engaging in ‘some other occupation’; that ‘some other’ means ‘any other,’ and that, consequently, he has no cause of action. Should this construction be adopted? If it is, what disability must a member suffer in order to be entitled to the benefits guarantied to him under his certificate of membership? This question is not easily answered. He might be deprived of both feet and both hands, and still be able to sit and watch a milk car, and thus engage in ‘some other occupation.’ Such a construction would practically relieve the defendant from all liability, for total disability arising from accident seldom occurs. The defendant was organized under the act for incorporating charitable, benevolent, and beneficiary associations. Being charitable and benevolent in character, its position of promising insurance, yet giving none, is hardly consistent. We cannot believe such a construction was intended. The first clause entitled the member to receive the benefits if ‘disabled from following his usual occupation.’ The second clause provides for such benefits if disabled from following some other occupation. The two clauses are connected...