State ex rel. Brotherhood of Locomotive Firemen and Enginemen v. Shain

• Decision Date: 20 December 1938
• Docket Number: 35969
• Parties: State of Missouri at the relation of the Brotherhood of Locomotive Firemen & Enginemen, Relator, v. Hopkins B. Shain, Robert M. Reynolds and Ewing C. Bland, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

123 S.W.2d 1

343 Mo. 666

State of Missouri at the relation of the Brotherhood of Locomotive Firemen & Enginemen, Relator, v. Hopkins B. Shain, Robert M. Reynolds and Ewing C. Bland, Judges of the Kansas City Court of Appeals

No. 35969

Supreme Court of Missouri

December 20, 1938

Writ quashed.

Harold C. Heiss, Edward E. Naber, S. M. Carmean, James T. Blair Jr., P. E. Reeder and Charles J. Winger for relator.

(1) The holding of the Kansas City Court of Appeals, that the provisions of the relator's constitution requiring a member to exhaust his right of appeal within the society before instituting an action at law to determine his rights to benefits were unreasonable and need not be complied with was an unwarranted refusal by the court to enforce the contract between the relator and the plaintiff, was an attempt to make and enforce a new contract between these parties in direct violation of the decisions of this court and the principles of law established by it. State ex rel. Am. Fire Ins. Co. v. Ellison, 269 Mo. 410, 190 S.W 882; State ex rel. Western Automobile Ins. Co. v Trimble, 297 Mo. 659, 249 S.W. 905; Prange v. International Life Ins. Co., 329 Mo. 651, 46 S.W.2d 526; State ex rel. Mut. Benefit Health & Acc. Assn. v. Trimble, 334 Mo. 920, 68 S.W.2d 688; Myers v. Union E., L. & P. Co., 334 Mo. 622, 66 S.W.2d 569; Seigle v. First Natl. Co., 338 Mo. 417, 90 S.W.2d 784; Monticello Bldg. Corp. v. Investment Co., 330 Mo. 1128, 52 S.W.2d 551; McMahon v. Maccabees, 151 Mo. 528, 52 S.W. 384; MaMahon v. Supreme Council, Order of Chosen Friends, 54 Mo.App. 472; Crutcher v. Order of Ry., Conductors, 151 Mo.App. 630; Easter v. Yoemen, 172 Mo.App. 299; State ex rel. Onion v. Supreme Tent, Pythian Sisters, 54 S.W.2d 470; State ex rel. Cammann v. Tower Grove Turn Verein, 206 S.W. 243; Skrivanek v. Brotherhood of Locomotive Firemen & Enginemen, 269 N.W. 111. (2) The holding of the Kansas City Court of Appeals, that the plaintiff was not bound to try his case on appeal on the same theory adopted and pursued by him in the trial court, and the court's affirmation of recovery by the plaintiff on a theory wholly different from that considered by the trial court, was in direct conflict with the controlling decisions of this court and well-established principles of law. Henry County v. Citizen's Bank, 208 Mo. 225, 106 S.W. 622; (1907). Snyder v. Am. Car. & Foundry Co., 322 Mo. 147, 14 S.W.2d 606; St. Louis v. Wright Cont. Co., 210 Mo. 491, 109 S.W. 6; Hobbs v. Hicks, 320 Mo. 954, 8 S.W.2d 969; Ersen v. Hancock Mut. Life Ins. Co., 91 S.W.2d 91; State ex rel. Bush v. Sturgis, 281 Mo. 604, 221 S.W. 91, 9 A. L. R. 1315; Chinn v. Naylor, 182 Mo. 595, 81 S.W. 1109; Pienieng v. Wells, 271 S.W. 66; Paramore v. Campbell, 245 Mo. 287, 149 S.W. 6; Brunswick v. Standard Ace. Ins. Co., 278 Mo. 154, 213 S.W. 46; Benz v. Powell, 338 Mo. 1032, 93 S.W.2d 879.

C. B. Burns for respondents.

(1) The opinion and judgment of the Kansas City Court of Appeals that the provisions of the relator's constitution requiring a member to exhaust his right of appeal within the society before instituting an action at law to determine his rights to benefits or insurance is in keeping with the rulings of this court in such cases. McMahon v. Macabees, 151 Mo. 523; Risinger v. Independent Order of Foresters, 158 Mo.App. 231; Kane v. Lodge, 113 Mo.App. 117; State ex rel. v. Grand Lodge A. O. U. W., 70 Mo.App. 465; Eminent Household Columbian Woodmen v. Payne, 88 So. 455; Employees' Ven. Assn. of Calumet & Arizona Mining Co. v. Johns, 249 P. 764; Sandor v. Verhovey Aid Assn., 199 Ill.App. 199; Nickolich v. Slovanska, Nardons, Podporna, Gednota, 260 P. 849; Young v. Insurance Co. 269 Mo. 12; Martin v. Continental Ins. Co., 256 S.W. 12; McKeen v. Natl. Cas. Co., 216 Mo.App. 518. (2) The holding of the Kansas City Court of Appeals relative to the theory adopted and pursued in the cause is in harmony with the opinions of this court. Aloe v. Fidelity Mut. Life Assn., 164 Mo. 700, 55 S.W. 993.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This is a certiorari proceeding to quash the record and opinion of the Kansas City Court of Appeals in Roberson v. Brotherhood of Locomotive Firemen and Enginemen, 114 S.W.2d 136. We are concerned only with whether or not the opinion of the Court of Appeals is in conflict with the last controlling decision of this court on the points ruled. [State ex rel. Mo. Mut. Assn. v. Allen et al., 336 Mo. 352, 78 S.W.2d 862, and cases there cited.] As to the facts we are limited to such as appear in the opinion. [State ex rel. Superior Mineral Co. v. Hostetter, 337 Mo. 718, 85 S.W.2d 743.] However, where reference is made in the opinion to pleadings and documents, these may be considered as though set out in full in the opinion. [State ex rel. Talbott et al. v. Shain et al., 334 Mo. 617, 66 S.W.2d 826, l. c. 827, and cases there cited; State ex rel. Mut. Life Ins. Co. v. Shain et al., 339 Mo. 621, 98 S.W.2d 690; State ex rel. Fidelity & Deposit Co. v. Allen (Mo.), 85 S.W.2d 455.]

Relator contends that the opinion of the Court of Appeals conflicts, in two respects, with the last controlling decisions of this court: (1) That the Roberson case was determined on appeal on a theory different from that upon which it was tried; (2) that the opinion, in effect, made a new and different contract to that existing between relator and Roberson.

We ascertain from the opinion that Harrison L. Roberson, a member of relator, sued relator on a contract of disability benefit insurance. The cause was tried before the court without a jury, and resulted in a judgment in favor of Roberson. Appeal was taken to the Kansas City Court of Appeals, and the judgment was reversed and cause remanded, because the trial court did not find as to all of the constitutive facts.

It appears that relator is "a voluntary, unincorporated labor union, with a grand lodge and many subordinate lodges;" that "it has a representative form of government with a constitution and bylaws and practices secret ritualistic lodge work; that its membership is confined exclusively to one class of persons who are engaged in a single hazardous occupation, to-wit, persons employed as locomotive firemen and enginemen; and that it carried on insurance business, without profit, for the exclusive benefit of its members."

Roberson was employed as a locomotive engineer, and became a member of relator order in 1914, and received a certificate or policy in the relief department, and prior to 1928, he received a certificate in the pension department. In 1928, and while in good standing, he became totally disabled to perform any work on a locomotive engine, and was thereafter taken out of employment by the railroad company for which he worked, and was granted a pension by relator under his pension certificate. In 1931, and after Roberson was granted the pension, relator abolished its relief and pension departments, effective January 1, 1932, and established a disability benefit department, "under the provisions of which its members who were then adjudged to be permanently and totally disabled and who were then receiving benefits from the pension department, upon releasing defendant (relator) from all claims on account of the pension department, would be permitted to become members of the disability benefit department." Roberson was informed August 26, 1931, by relator, of the abolishment of the relief and pension departments and of the new arrangements. December 11, 1931, he was informed by relator "that he was adjudged to be totally and permanently disabled as provided in the law governing the disability benefit department, and that in exchange for his release of the pension department and the payment of $ 1.25 per month assessment thereafter, he would be immediately transferred to the disability benefit department, and would immediately receive benefits therefrom at the rate of $ 50 per month."

Roberson signed up, releasing the pension department, and thereafter received $ 50 per month until February 1, 1934, when relator notified him "that a physical examination, which it had caused to be made of him in its routine check up on November 18, 1933, had shown that he was not 'totally and permanently disabled' as defined in the laws" of relator. Dr. Brennan, a witness for relator at the trial, testified that he made the examination of Roberson, and to the effect that at the time (November 18, 1933) Roberson was not "totally and permanently disabled from or directing any work, but that he could do light work." The evidence on the part of Roberson was to the effect that he had been continuously, since 1928, until the date of the trial and then, was "wholly unable to perform any work."

It appears from the opinion that relator "is doing a fraternal, beneficiary insurance business in Missouri, and its contracts of insurance will be governed by the law applicable to such contracts," and says the opinion, since relator "is a fraternal beneficiary insurance company and the contract sued on is one of that character, it follows that the policy, the application, and the constitution and by-laws of defendant (relator) must all be considered together as forming the contract of insurance."

The opinion says that "it is apparent from the conclusions of fact and law as declared by the trial court, as well as from the court's refusal to find and make other conclusions of law and of fact as requested so to do by defendant (relator), that the (trial) court determined the case on the theory that the contract sued on is governed by the law relative to 'old line' insurance contracts." This, says the Court of Appeals, "was an erroneous theory," but that "if the judgment below was for the right party, even though it was...