82 Neb. 12 | Neb. | 1908
Tliis action was instituted by Gant Keith in his life time, and later prosecuted by the administratrix of his estate against the Chicago, Burlington & Quincy Railroad Company and the Chicago, Burlington & Quincy Railway Company to recover $638.70, alleged to be due upon a certificate of membership in the relief fund of the Burlington voluntary relief department for disability benefits at the rate of 75 cents a day from December 10, 1901, to April 4, 1904, at which time the said Gant Keith died. On September 11, 1900, the deceased entered the employ of the railway company as a switchman, and became a member of the relief department. Three days later, while thus employed, he received an injury from which it appears he never fully recovered. He was entitled to receive from the relief fund $1.50 a day for 52 weeks, and thereafter 75 cents a- day during the continuance of his disability. He received such relief until December 10, 1901, at which time the defendants refused further payment, claiming that his disability had then ceased. At one time Keith attempted to resuine his duties as a switchman, but was unable to do so. It is undisputed that he was disabled until December 10, 1901. At that time he reported for work to his employing officer, who tendered him some position as a utility man at the rate of $35 a month. This employment Keith refused, either because he was unable to do the work or because the wages offered were unsatisfactory. He then obtained employment as a bartender in his brother’s saloon until April, 1902, and thereafter until his death was in the employ of one Dwyer, who succeeded his brother in the saloon business. While in the employ Of.'his brother and for the first year of his employment
The rights of the parties depend upon the construction of a part of one section of the regulations of the relief department in force at the time deceased- became a member, and which is as follows: “Wherever used in these regulations, the word ‘disability’ shall be held to mean physical inability to work by reason of sickness or accidental injury, and the word ‘disabled’, shall apply to members thus physically unable to work.” It is the defendants’ contention that the words “physical inability to- work,” as used above, mean physical inability to do any work whereby one could maintain himself, and that the deceased, having recovered from his injury so as to be able to perform the duties of a bartender, was under no disability within the meaning of the regulations quoted. The trial court refused an instruction submitting this theory to the jury. Instead, he gave an instruction in which he said: “By the word ‘disability’ is meant inability to perform -the ordinary duties in the employment in
In Chicago, B. & Q. R. Co. v. Olsen, 70 Neb. 570, in the opinion overruling the motion for rehearing it is said: “There seems to be force in the argument that, if the plaintiff had recovered from the injury so as to be able to perform labor similar and equivalent to that required in the employment in which he was engaged at the time of the accident, or was able to perform the duties of an
The error of the district court being without prejudice, we recommend that the judgment be affirmed.
By the Court: Eor the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.