Voluntary Relief Department of Pennsylvania Lines West of Pittsburgh v. Spencer

• Decision Date: 25 February 1897
• Docket Number: 1899
• Citation: Voluntary Relief Department of Pennsylvania Lines West of Pittsburgh v. Spencer, 46 N.E. 477, 17 Ind.App. 123 (Ind. App. 1897)
• Parties: VOLUNTARY RELIEF DEPARTMENT OF THE PENNSYLVANIA LINES WEST OF PITTSBURGH v. SPENCER
• Court: Indiana Appellate Court

46 N.E. 477

17 Ind.App. 123

VOLUNTARY RELIEF DEPARTMENT OF THE PENNSYLVANIA LINES WEST OF PITTSBURGH v. SPENCER

No. 1899

Court of Appeals of Indiana

February 25, 1897

From the Cass Circuit Court.

Affirmed.

N. O Ross, G. W. Funk and D. H. Chase, for appellant.

F. M Kistler, G. S. Kistler, S. T. McConnell and A. G. Jenkins for appellee.

OPINION

ROBINSON, J.

Appellee held a certificate of membership in appellant association, alleged in the complaint to be a corporation.The rules and regulations of the association, which were a part of the certificate, contained a stipulation to the effect that if the appellee while an employe of the Pittsburgh Cincinnati, Chicago and St. Louis Railway Company, should become disabled by sickness or by injury, other than an accident, in the service of the employer, he should be entitled to certain disablement benefits.This action was brought to recover benefits while disabled for service, from an injury.The certificate of membership was embodied in the complaint, and the rules and regulations of the association were filed with the complaint as exhibits.

The first objection to the complaint is that it does not allege that the injury complained of was received at a time when appellee was not intoxicated, or off duty on account of intoxication, and not engaged in an unlawful act.

The appellee set forth in his complaint that on a certain day he met with an accident, wholly without any cause or negligence on his part, whereby his left leg was broken, just above the ankle joint, by reason of which he was unable to enter upon his duties; that he had given notice and proofs of the injury, according to the requirements of the rules and regulations of appellant, and that he had fully complied with all the terms of his contract.We think these allegations negatived the idea that he had violated any condition precedent contained in the rules.If appellee had, in fact, violated some rule that would prevent a recovery, such violation would properly be matter of defense.

It is provided in section 373, Burns'R. S. 1894, that "In pleading the performance of a condition precedent in a contract, it shall be sufficient to allege, generally, that the party performed all the conditions on his part."

Such general averment has been held sufficient as to the condition of a policy of insurance.Louisville Underwriters v. Durland,123 Ind. 544, 7 L. R. A. 399, 24 N.E. 221.SeePhoenix Ins. Co. v. Golden,121 Ind. 524, 23 N.E. 503;Commercial Assur., etc., Co. v. State,ex rel., 113 Ind. 331, 15 N.E. 518;Watson v. Deeds,3 Ind.App. 75, 29 N.E. 151.

In addition to the general denial the appellant answered in three paragraphs; to the third and fourth paragraphs demurrers were sustained.The demurrer to the second paragraph was overruled.The second paragraph sets out rule 52 of the appellant, which rule provides that "benefits will not be paid for disability arising from sickness contracted, and injuries received by members while intoxicated, or off duty in consequence of intoxication, or from injuries received while engaged in unlawful acts; or, for disease or death resulting from their immoralities, or from the intemperate use of stimulants or narcotics, or for death by the hands of justice;" and it is alleged that appellee was intoxicated at the time of the injury, and was further engaged in an unlawful act, which is set out in the pleading.

The third paragraph is based upon rule 45 of the appellant, which rule provides that "payments on account of disablement by accident will only be made upon the disablement being shown to have resulted solely from accidents occurring to members in the performance of duty in the service, and to which they were assigned, or which they were directed to perform by proper authority, or in voluntarily protecting the property of the company in whose employ they are.This shall include accidents occurring to members at points upon the employing company's property, which they necessarily pass when going to and from work, and which do not result from their voluntarily or unnecessarily exposing themselves to danger.There must be exterior or other positive evidence of injury, and satisfactory evidence that it incapacitates the person for performing his duty in the service, or, when of a permanent character, to earn a livelihood in an employment suited to his capacity; disablement from accident occurring otherwise than as aforesaid, will be classed with sickness."It is further alleged that said injury did not "occur to the plaintiff at any point on said railroad company's property, which the plaintiff necessarily had to pass when going to and from work, but that it did result from the plaintiff voluntarily and unnecessarily exposing himself to danger when off duty, and while seeking his own pleasure."

Appellant's brief says that "this answer is not good, as an answer to a complaint for injuries received under the provisions of rule 45, nor for injuries received under the conditions named in rule 52, unless the closing part of the answer makes it so."

The pleading states no facts that go to show that appellee was exposing himself to danger, when injured, or that at that time he was seeking his own pleasure.This paragraph is open to the objection that it states conclusions instead of facts.

The fourth paragraph of answer sets out rule 65 of the association, which provides that "all questions or controversies of whatever character, arising in any manner or between any parties or persons in connection with the Relief Department, or the operation thereof, whether as to the construction of language or meaning of the regulations of the relief department, or as to any writing, decision, instruction, or acts in connection therewith, shall be submitted to the determination of the superintendent of the relief department, whose decision shall be final and conclusive thereof, subject to the right of appeal to the advisory committee within thirty days after notice to the parties interested, of the decision.When an appeal is taken to the advisory committee it shall be heard by said committee without further notice, at their next stated...