Parrott v. Brotherhood of Railroad Trainmen, 4638.

• Decision Date: 07 June 1935
• Docket Number: No. 4638.,4638.
• Citation: 85 S.W.2d 306
• Parties: PARROTT v. BROTHERHOOD OF RAILROAD TRAINMEN.
• Court: Texas Court of Appeals

85 S.W.2d 306

PARROTT v. BROTHERHOOD OF RAILROAD TRAINMEN.

No. 4638.

Court of Civil Appeals of Texas. Texarkana.

June 7, 1935.

Rehearing Denied June 20, 1935.

Appeal from District Court, Lamar County; Newman Phillips, Judge.

Action by Albert S. J. Parrott against the Brotherhood of Railroad Trainmen. From a judgment dismissing the suit upon plaintiff's failure to further amend after defendant's general demurrer and special exceptions to plaintiff's petition had been sustained, plaintiff appeals.

Affirmed.

Moore & Moore and Braswell & Perfect, all of Paris, for appellant.

Long & Wortham and Hutchison & Fisher, all of Paris, for appellee.

JOHNSON, Chief Justice.

This suit was filed by appellant, Albert S. J. Parrott, as plaintiff against appellee, Brotherhood of Railroad Trainmen, as defendant, seeking to recover for total and permanent disability resulting from a spinal injury sustained by appellant November 9, 1931, while performing his duties as a railroad brakeman, which disability appellant claims he was insured against by appellee, a fraternal benefit society. The appeal is from a judgment dismissing plaintiff's suit upon his failure to further amend after the trial court had sustained defendant's general demurrer and "special exceptions" to plaintiff's first-amended original petition as supplemented by plaintiff's first supplemental petition. The trial court having sustained the general demurrer, the special exceptions should not have been considered. City of Dallas v. Shows (Tex. Com. App.) 212 S. W. 633; Everett v. Henry, 67 Tex. 402, 3 S. W. 566; Bingham Bros. v. Port Arthur Channel & Dock Co., 100 Tex. 192, 97 S. W. 686, 13 L. R. A. (N. S.) 656. Therefore, the appeal presents the single question Did the trial court err in sustaining the general demurrer to plaintiff's petition?

The petition alleges that on February 11, 1924, defendant issued to plaintiff a beneficiary certificate in the amount of $2,700 (later increased to $2,800), entitling him to all the rights and benefits of membership and to participate in the benefit department, class D, of such Brotherhood, in the amount set forth in its constitution in the event of his becoming totally and permanently disabled as defined in section 68 of the constitution:

"That by the provisions of Section 68 of defendant's constitution referred to in the certificate the amputation or severance of an entire hand at or above the wrist joint, of an entire foot at or above the ankle joint, complete and permanent loss of sight of both eyes, or upon a member becoming 70 years of age, are made permanent disabilities. That Section 70 of said constitution provides that all claims for disabilities not coming within the provisions of Section 68 shall be held to be addressed to the benevolence of the brotherhood, and shall in no case be made the basis of any legal liability on the part of the brotherhood; that such claims shall be referred to the beneficiary board composed of the President, Assistant to the President, and General Secretary and Treasurer who shall prescribe the character and decide as to the sufficiency of the proofs to be furnished by the claimant, and that the approval of said board shall be required as a condition precedent to the right of any such claimant to benefits, and that no appeal shall be allowed from the acts of said board in any case.

"Plaintiff alleges that the provision of Section 70 that claims for disability therein referred to shall not be made the basis of any legal liability on the part of the Brotherhood and that no appeal shall be allowed from the action of the beneficiary board on a claim, are illegal in that such provisions are an attempt to deprive the courts of the country of jurisdiction to pass upon the rights of parties to contracts, and that such provisions are arbitrary and unreasonable in that they undertake to make the action of the beneficiary board final and binding on a member holding the certificate, such board being an agency of defendant and a party to the contract; that such provision as a part of the contract is unilateral and without consideration, and that said provisions are against public policy, void, and not binding on this plaintiff."

The petition further alleges that plaintiff sustained total and permanent disability November 9, 1931, resulting from spinal injury received while performing his duties as a railroad brakeman, of which due and proper proof was made and furnished defendant; and that the rejection of his claim was an abuse of discretion, if any discretion defendant had in the matter, and was an unauthorized discrimination against plaintiff.

Plaintiff's alleged disability resulting from spinal injury is not of that character defined and insured against in section 68 of defendant's constitution as pleaded by plaintiff. Section 70 of the constitution, as pleaded by plaintiff, contains no promise to pay for disabilities not coming within the provision of section 68; to the contrary, section 70 provides that all claim for such disabilities shall be held to be addressed to the benevolence of the Brotherhood. Had defendant by its constitution or otherwise assumed a legal obligation to pay claims for disabilities of the character suffered by plaintiff, it could not avoid its contract, nor oust the courts of jurisdiction to redress a breach, by stipulating that a board of its own officers should be final arbitrators of its liability. Knights of Modern Maccabees v. Mayfield (Tex. Civ. App.) 147 S. W. 675; Note 51 A. L. R. 1420. On the other hand, the association violates no rule of law or public policy in naming such a board to exercise its benevolence, and no legal liability is incurred by authorizing nonactionable claims to be addressed to the benevolence of the order, and the decisions of its board may in such matters be made final. The courts can hold that contractual rights cannot be taken away by any system of arbitration whereby one of the parties to the contract does the arbitrating, but courts cannot make a contract for the parties, nor hold that the contract gives rights which it does not, but which it expressly negatives. That members, holding beneficiary certificates, as plaintiff, have no cause of action against the association for disabilities not coming within the provisions of section 68 of defendant's constitution has been determined by the courts of this state and other states. Rieden v. B. of R. T. (Tex. Civ. App.) 184 S. W. 689, 690, writ of error refused; Kelly v. B. of R. T., 308 Ill 508, 140 N. E. 5, 7, 29 A. L. R. 243; Pool v. B. of R. T., 143 Cal. 650, 77 P. 661; Grand Lodge, B. of R. T. v. Smith, 129 Miss. 738, 92 So. 837, 27 A. L. R. 863; Huff v. Grand Lodge, B. of R. T., 97 Neb. 848, 151 N. W. 979; Robinson v. B. of R. T., 80 W. Va. 567, 92 S. E. 730, L. R. A. 1917E, 995. In Rieden v. B. of R. T., supra, it is said: "The contract does not give a cause of action in one division and undertake to deprive the beneficiary of it in another by providing that no appeal shall be made to the courts, as was the case in Lewis v. Brotherhood Accident Co., 194 Mass. 1, 79 N. E. 802, 17 L. R. A. (N. S.) 714."

Kelly v. B. of R. T., supra: "The question has been before the courts of various states, and it has uniformly been held that the society is liable for a total and permanent disability only in case it is of the character mentioned in section 68. Brotherhood of Railroad Trainmen v. Walsh, 89 Ohio St. 15, 103 N. E. 759; Kane v. B. R. T., 102 Neb. 645, 168 N. W. 598, L. R. A. 1918F, 1037; Holcomb v. B. R. T., 171 Ky. 843, 188 S. W. 885, L. R. A. 1917B, 107; Mady v. Switchmen's Union of North America, 116 Minn. 147, 133 N. W. 472."

Plaintiff's petition further alleges:...