Roleson v. Grand Lodge Broth. of R.R. Trainmen

• Decision Date: 13 May 1935
• Citation: 84 S.W.2d 651,229 Mo.App. 772
• Parties: C. F. ROLESON, RESPONDENT, v. GRAND LODGE BROTHERHOOD OF RAILROAD TRAINMEN, APPELLANTS
• Court: Kansas Court of Appeals

84 S.W.2d 651

229 Mo.App. 772

C. F. ROLESON, RESPONDENT, v. GRAND LODGE BROTHERHOOD OF RAILROAD TRAINMEN, APPELLANTS

Court of Appeals of Missouri, Kansas City

May 13, 1935

Appeal from the Circuit Court of Cole County.--Hon. Nike G. Sevier Judge.

AFFIRMED.

Judgment affirmed.

O. S Hill and Bohling & Barnett for respondent.

Irwin & Bushman for appellant.

OPINION

TRIMBLE, J.

Defendant, a voluntary unincorporated association, having its general headquarters in the city of Cleveland, Ohio, issues to its members in the State of Missouri and elsewhere, certificates or policies of insurance, agreeing to pay to the holders thereof a certain amount for partial or total disability, and in case of death, a stated sum to his beneficiary. The certificate of membership, sued on herein, is dated January 11, 1929, and was issued to plaintiff as a member of Stinger Lodge, No. 528, of the Brotherhood of Railroad Trainmen (for convenience hereinafter referred to as the B. R. T.), and accepted April 2, 1929.

Said certificate was applied for by plaintiff while he was (as he still is), a resident of Missouri. The medical examination, a part of the certificate, was made by Dr. Castles, surgeon for the Missouri Pacific Railroad, at Kansas City, Missouri, and the certificate was delivered to and accepted by plaintiff while he resided in Kansas City, and Stinger Lodge, of which he was a member, is located in Missouri.

The certificate provided that it is of Class D, the amount of said certificate not being specified therein further than it is for Roleson's total and permanent disability as defined in section No. 68 of the Constitution upon the express condition that he comply with the Constitution, general rules and regulations "now in force or which may hereafter be adopted by the within named brotherhood, which as printed and published by the Grand Lodge of the said Brotherhood, with the application for his certificate as signed by him and the medical examination of said C. F. Roleson, copies of which application and medical examination are attached hereto all of which are made a part hereof, and together with this certificate constitute the contract between said C. F. Roleson and said Brotherhood, and that he pay all dues and assessments imposed upon him within the time specified by the Constitution and general rules."

It was admitted that the certificate sued upon, is known as a Class D certificate carrying benefits in the sum of $ 2800; and that the plaintiff lost the sight of one eye only.

At the time of the issuance and acceptance of the certificate, section 68 of the Constitution and general rules, then in force, provided that if the beneficiary should "suffer the complete and permanent loss of the sight of one or both of his eyes, he should be entitled to receive the benefits stated upon furnishing due proof." The said section 68, as thus constituted, was adopted in the Convention of May-June, 1928.

Plaintiff's suit is for the complete, total and permanent loss of his left eye suffered while said certificate was in full force and effect, of which notice and proof were given on the day of January, 1933.

Altogether, the answer of defendant raised two defenses to plaintiff's suit:

(1) A defense based on the claimed failure to pay his dues and assessments on and prior to the 1st day of October, 1932, by reason of which his certificate then and there lapsed and became null and void, and thereafter on November 2, 1932, he applied for reinstatement and was so reinstated; but that, under the Constitution and by-laws, such reinstatement was null and void because of a false warranty that he was not then afflicted by any illness or disease or injury tending to impair his health and that his eyesight was not in any wise impaired. This defense of false warranty seems to have been apparently abandoned, at least is now no longer in the case, especially after the verdict of the jury.

(2) The defense that at the Convention held at Houston, from May 4 to June 9, 1931, section 68 of the Constitution and by-laws was amended, becoming effective September 1, 1931, changing the said section so as to provide that a beneficiary member must suffer the complete and permanent loss of both eyes before he could be considered totally and permanently disabled.

In support of this second defense, defendant offered in evidence section 9469 of Throckmorton's General Code of Ohio, duly authenticated by the Ohio Secretary of State, as follows: --

"Every certificate issued by any such society shall specify the amount of the benefit provided thereby, and shall provide that the certificate, the charter or articles of incorporation or, if voluntary association, the articles of association, the constitution and laws of the society and the application for membership and medical examination, signed by the applicant, and all amendments to each thereof, shall constitute the agreement between the society and the member, and copies of the same certified by the secretary of the society, or corresponding officer, shall be received in evidence of the terms and conditions thereof and any changes, additions or amendments to such charter or articles of association, if a voluntary association, constitution or laws duly made or enacted subsequent to the issuance of the benefit certificate shall bind the member and his beneficiaries, and shall govern and control the agreement in all respects the same as though such changes, additions or amendments had been made prior to and were in force at the time of the application for membership."

This offer was objected to, and the objection of plaintiff was sustained...