Wise v. Chicago, Burlington & Quincy Railroad Company Relief Department
| Decision Date | 07 July 1916 |
| Docket Number | 19,763 - (131) |
| Citation | 158 N.W. 711,133 Minn. 434 |
| Parties | FRANCIS M. WISE v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY RELIEF DEPARTMENT |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover $2,000 upon plaintiff's benefit certificate in defendant's relief department. The answer set up the defense mentioned in the opinion. Defendant also filed its supplemental answer alleging that plaintiff had begun an action against defendant in the district court of the same county. The case was tried before Hanft, J., who granted plaintiff's motion to direct a verdict in favor of plaintiff for the amount demanded. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.
Dismissal of action -- misnomer of defendant -- amendment.
1. A misnomer of the defendant railroad company by adding to its corporate name the words "Relief Department" was not a ground for dismissal, jurisdiction having been acquired, the defect was amendable as of course, and will be disregarded.
Relief certificate -- refusal to act -- appeal unnecessary.
2. The plaintiff suing upon his membership in the relief department of the defendant was not required to appeal within the department when no adverse decision was made and the official to whom he properly presented his claim refused to act.
Common carrier's regulation invalid -- Federal Employer's Liability Act.
3. Under chapter 149, section 5 of the Federal Employer's Liability Act of April 22, 1908 (35 St. 65), providing that any contract, rule or regulation of a common carrier exempting it from liability shall be void, provided that it may set off its contribution to any insurance or relief benefit paid to the injured employee in his action under the act for his injuries, a regulation of the relief department that if the employee brings suit for his injuries the benefits accruing under his membership shall be forfeited, is invalid and the employee may recover on his membership certificate, though he has pending an action against the company for his injuries.
Barrows Stewart & Ordway, for appellant.
Barton & Kay, for respondent.
Action to recover upon a certificate of membership in the relief department of the defendant. Verdict directed for the plaintiff. Defendant appeals from the order denying its alternative motion for judgment or a new trial.
The plaintiff was injured while in the employ of the defendant. His injury resulted in an amputation at the wrist. He was a member of the relief department. His membership gave him the right to receive a specified sum of money. This action was brought to recover it.
1. The action was brought against the Chicago, Burlington & Quincy Railroad Company, Relief Department. The relief department is a department of the company's service. The company appeared and answered to the merits. At the trial it appeared specially and moved to vacate the service of summons and dismiss the action, upon the ground that the summons and complaint were not served upon the defendant named. At common law an objection on the ground of misnomer was reached by plea in abatement, 1 Chitty, Pl. 466; Shipman, Com. Law Pl. 164, [Illegible Word] Bates, Pl. 131; 2 Estee, Pl. § 3294. Now it may be reached by motion. Kenyon v. Semon, 43 Minn. 180, 45 N.W. 10. If jurisdiction is acquired the defect may be remedied by amendment. Dunnell, Minn. Pl. (2d ed.) § 477, and cases cited. Jurisdiction was acquired of the railroad company. The plaintiff might well enough have moved to amend by striking out the words "Relief Department" when objection was made. Anderson v. Foley Bros. 110 Minn. 151, 124 N.W. 987; Morrison County Lumber Co. v. Duclos, 131 Minn. 173, 154 N.W. 952. The defect is not one of substance, was not a ground for setting aside service or of dismissal, it only called for a correction, and it should now be disregarded.
2. A rule of the relief department provided for an appeal within the department. All controversies were to be submitted within 60 days after an appeal to the decision of the superintendent and his decision was final, unless an appeal was taken to the committee within 30 days, and the decision of the committee was final. We find no decision adverse to the plaintiff from which an appeal could have been taken to the superintendent. No action had been taken by any official of the order. The answer suggests that the injury did not, in the opinion of the medical officers of the order, necessitate the amputation of the plaintiff's hand at the wrist. So far as the medical officers took any part they acquiesced in the doing of what was done. They decided nothing adversely. An application for relief was made to the superintendent and he refused to act. There was no opportunity for getting beyond him by appeal, for he made no decision. He refused to consider. We hold that an appeal was unnecessary.
3. The regulations of the relief department provided that if suit was brought against the company for injuries the member should forfeit all interest in the relief fund. The provision follows:
"If any suit shall be brought against the company, or any other company associated therewith as aforesaid, for damages arising from or accruing out of injury or death occurring to a member, the benefits otherwise payable and all obligations of the relief department and of the...
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