Order of Railway Conductors v. Bandy

• Decision Date: 25 June 1928
• Docket Number: (No. 67.)
• Citation: 8 S.W.2d 448
• Parties: ORDER OF RAILWAY CONDUCTORS OF AMERICA et al. v. BANDY, Circuit Judge et al.
• Court: Arkansas Supreme Court

8 S.W.2d 448

ORDER OF RAILWAY CONDUCTORS OF AMERICA et al. v. BANDY, Circuit Judge et al.

(No. 67.)

Supreme Court of Arkansas.

June 25, 1928.

Separate applications for writ of prohibition by the Order of Railway Conductors of America and others against W. W. Bandy, Judge of Circuit Court of Second Judicial District of Arkansas, and Charles Finnegan. Writ granted.

Order of Railway Conductors of America, Mutual Benefit Department of Order of Railway Conductors of America, and Order of Railway Conductors of America, Accident Insurance Department of Order of Railway Conductors of America, brought separate original applications for a writ of prohibition against W. W. Bandy, judge of the circuit court of the Second judicial district of Arkansas, and Charles Finnegan to prohibit said circuit court from taking further actions in suits instituted against them in said court.

The record shows that Charles Finnegan brought separate suits against each petitioner herein to recover an amount alleged to be due him on a benefit certificate or an insurance policy issued by said defendants. According to the allegations of the complaint, in each case it is alleged that the Order of Railway Conductors of America is a voluntary organization composed of persons in charge of the operation of complete trains and under supervision of the movement thereof. Continuing, the complaint reads as follows:

"That the said Order of Railway Conductors of America established and maintained what is known as a mutual benefit department, whose object is to aid and benefit disabled members and the widows, relatives, and legal representatives of deceased members of said Order of Railway Conductors of America. That said Mutual Benefit Department, while composed of only those persons belonging to the Order of Railway Conductors of America, who contribute to a common fund for that purpose, it is controlled and operated by the general officers of the Order of Railway Conductors of America.

"Plaintiff alleges that on the 10th day of March, 1916, the Mutual Benefit Department of the Order of Railway Conductors of America executed to Charles Finnegan, the plaintiff, its certificate of membership, being certificate series C, No. 9604, in the sum of $3,000; that under the provisions of said certificate of membership that on the payment of membership fees and each and every assessment that may be levied against the certificate and in accordance with existing laws of the Mutual Benefit Department, the Mutual Benefit Department of the Order of Railway Conductors of America agreed to and with the said Charles Finnegan, in case of his death and after due notice and satisfactory evidence of such death, to pay his wife, Anna Finnegan, the sum of $3,000. And in the event of the said Charles Finnegan becoming disabled as specified in the laws of said Mutual Benefit Department in force at the time the disability occurred, to pay to the said Charles Finnegan, the said amount of $3,000. Copy of certificate attached and marked Exhibit A. Plaintiff paid all assessments levied against him from the time of the issuance of said certificate up until the ___ day of ___, 1926.

"That during the month of April, 1925, while the plaintiff was a member of said Mutual Benefit Department of said Order of Railway Conductors of America, and was a conductor on the St. Louis-San Francisco Railway, while engaged in the performance of his duties, a cinder lodged in his left eye, from the effect of which the plaintiff lost the sight of his left eye, becoming totally blind in said eye. And thereafter by reason of said disability being discharged as railway conductor, and being incapacitated from further performing his duties of occupation thus resulting in total loss of eyesight.

"That article 18 of the constitution and bylaws of said Mutual Benefit Department of said Order of Railway Conductors of America at that time provided: `If any member of this department becomes disabled by amputation or severance of the right hand at or above the wrist joint; by the amputation or severance of the right foot at or above the ankle joint; by total loss of eyesight (which shall not include color blindness) or by total loss of sense of hearing, and which is furnished with the time limit fixed in article 17 hereof, a certificate on a blank, provided by the department for that purpose, signed by a competent physician and five members of the department, giving the date, cause, and nature of the disability, he shall be entitled to full payment of this certificate. * * *'

"Plaintiff further states that he made application to said Mutual Benefit Department of the Order of Railway Conductors of America as provided in said by-laws, and that said officers in charge of said Mutual Benefit Department refused to furnish blanks on which to make proof of disability and that for that reason he was unable to comply with article 17, as to the blanks required to be furnished and proofs required to be made of disability. That the defendants have failed and refused to pay the amount of said certificate, or any part thereof, and that by reason of the facts herein set forth this plaintiff is entitled to recover the sum of $3,000, with interest at 6 per cent. per annum from the 1st day of May, 1925, to this date. That plaintiff is now, and has been at all times, a citizen and resident of the state of Arkansas."

A copy of the certificate is attached to the complaint and marked Exhibit A. Exhibit A is a certificate of membership in favor of Charles Finnegan for $3,000 in the Mutual Benefit Department of the Order of Railway Conductors, in which it is "declared and agreed that this certificate is issued and delivered and any claim thereunder shall be payable at the office of the said Mutual Benefit Department in Cedar Rapids, Iowa, and not elsewhere." Under its terms the provisions of the certificate, the application and the laws of the order make the contract between the parties.

Summons was issued to the sheriff of Pulaski county, and the return shows service to have been made by delivering a copy to J. S. Maloney, insurance commissioner. The defendant in the action, without entering its appearance to the action, appeared solely for the purpose of filing a motion to quash the service of summons. In its motion it is stated that it is a voluntary, unincorporated labor organization, made up of a membership of several hundred thousand members, residing throughout the United States, organized for the benefit of its members, and that service of summons was not in conformity with the laws of the state of Arkansas. The plaintiff in the action...