36 Ind. App. 580 | Ind. Ct. App. | 1905
This cause originated before a justice of the peace, where a judgment was rendered against appellant for $150. From that judgment it appealed to the court below where the cause was tried upon an agreed statement of facts, resulting in a finding and judgment for appellee in the sum'of $167.25. Appellant moved for a new trial, which motion was overruled.
The errors assigned are: (1) That the complaint does not state facts sufficient to constitute a cause of action; and (2) that it was error of the court to overrule appellant’s motion for a new trial.
The complaint is attacked for the first time in this court. The contract between the parties, by which appellant agreed to pay appellee on account of permanent disability, etc., is appellant’s constitution. ' The particular sections of the constitution upon which appellee seeks to recover are substantially set out in his complaint. The objection urged to the complaint is that it does not aver that the injury received by appellee was a permanent disability. Section 1 of article 22 of appellant’s constitution provides that all members to be entitled to benefits “must be paying full local dues, assessments and journal fees.” The complaint fully meets this requirement. Section 2 of article 22 provides that a full beneficial member shall, if one year in continuous good standing and not indebted during that time for three months dues, fines or assessments, be entitled
In October, November and December, 1902, being subsequent to appellee’s injury, the constitution was amended by adding an additional section to article 2, which provides: “A member who leaves the trade to enter another occupation need not withdraw from the brotherhood. He shall still remain a member and in benefits, except he engages in hazardous work or assumed unusual risks in the occupation he is engaged in,” etc. In April, 1903, appellant further amended its constitution by defining “hazardous work or unsual risks” as follows: “Men who leave the trade and engage in the occupation of railroad engineers, firemen, brakemen, conductors, etc., * * * or any other occupations that are more hazardous than the trades enumerated in our constitution.”
It is also shown by the record that appellee’s claim for benefits was disallowed because he had “left the painting business and engaged in a more hazardous occupation, exposing himself to risks to which members are not usually liable.” Upon the theory that the occupation in which appellee was engaged at the time of his injury was more hazardous than that of his occupation as a painter, it is contended, under the provisions of the constitution just 'referred to, that he is not entitled to recover. It may be conceded that the occupation of a railroad brakeman is more hazardous than that of a painter, and, if there were no other facts exhibited by the record, it might well be held that for this reason, if for no other, appellee was not entitled to recover. We are clearly of the opinion that the
The knowledge that the officers of the local union possessed as to the fact that appellee was engaged as a railroad brakeman was the knowledge of the appellant, and in accepting assessments thereafter it waived any right it had under that provision of the- constitution to which we have referred. Supreme Court, etc., v. Sullivan, supra. To the same effect, see, also, Supreme Tent, etc., v. Volkert (1900), 25 Ind. App. 627. Many authorities might be cited in support of the legal proposition just stated,-but it is so well settled that a multiplicity of cases is unnecessary. Our conclusion is that the agreed facts upon which the case was submitted and decided fully support every contention of appellee.
Judgment affirmed.