171 P. 390 | Or. | 1918
Lead Opinion
1. It is contended that the plan promulgated by the defendant should be treated like a policy of life insurance and construed strictly against defendant. This contention is supported by Western Union Tel. Co. v. Hughes, 228 Fed. 885 (143 C. C. A. 283). We are committed to such strict construction in the case of a life insurance policy: Stringham v. Mutual Ins. Co., 44 Or. 447, 448 (75 Pac. 822). This is not an action on a life insurance policy. The defendant is not a life underwriter, but a telegraph company. Its promulgation of the plan under which this action is brought is differentiated from an ordinary transaction in the commercial world. The protection and benefits assured by the defendant to its employees impose upon the defendant a burden greater than any exacted from employers by the law in its present state of development. The fund from which these benefits are paid is created and maintained by the defendant; there is no provision for deductions from the wages of the employees for the benefit of the fund. A plan of this character voluntarily promulgated by a large employer of labor should not be extended by the courts so as to embrace cases falling without the intent of the author of the plan as manifested by a fair and just construction of the language used. These principles of construction seem to be applied by the appellate division
“All employees of the Company on January 1, 1913, or thereafter shall be entitled to insurance against death by accident occurring in and due to the performance of work for the Company.”
The plan, containing this offer, was brought to the attention of all employees. The language used imports a right in the employee to the protection specified. The statement in Section 20 of Article 9 that claims for death benefits will be payable at a time .stated implies an obligation of the defendant to make such payments. Section 28 of Article 9 quoted above clearly implies the creation of a right under the plan which may be asserted or waived at the election of the employees. In effect, the defendant said to its employees :
“If you remain in the discharge of your duties, those dependent upon you shall be entitled to benefits in the event of your death, to the extent of the sums specified in this plan.”
Plaintiff’s husband did remain in defendant’s employ and lost his life while in the performance of his duties. We find here all the elements of a contract.
“Where the offer is to do something if the offeree will not merely promise to do, but do, something, compliance with the condition of the offer by doing the act*238 in the way prescribed is ordinarily sufficient evidence of the acceptor’s'assent”: 13 C. J. 284.
We are committed to the foregoing principle by Fisk v. Henarie, 13 Or. 156, 168 (9 Pac. 322). Plaintiff’s husband must be deemed to have accepted the plan offered and his services rendered subsequent to the • promulgation of the plan are a sufficient consideration to support the defendant’s promise to pay. While this question is not discussed in Western Union Tel. Co. v. Hughes, 228 Fed. 885 (143 C. C. A. 283), the effect of the opinion is to decide that the plan offered by the defendant constitutes a contract with its employees on which an action may be maintained. In McNevin v. Solvay Process Co., 32 App. Div. 610, 617, the defendant admitted that a similar scheme to that with which we are concerned constituted a contract between employer and employees.
“the obligation of the Company is limited: * * Third: To the appointment of a Committee to administer the Fund according to these Regulations. Fourth: To making payments out of the Fund upon the order of the Committee.”
It is neither alleged nor proved that' the committee has acted on plaintiff’s claim and defendant contends that for this reason plaintiff’s suit cannot be maintained. Defendant relies on Legg v. Swift & Co., 167 Mo. App. 427 (151 S. W. 230), and McNevin v. Solvay Process Co., 32 App. Div. 610 (53 N. Y. Supp. 98). In the first of these cases plaintiff’s claim was not against the defendant, but against an association organized at the instance of the defendant for the protection of defendant’s employees. The fund was created wholly by deductions from the wages of the employees and the defendant was merely the treasurer of the fund.
The functions of the defendant’s committee are by no means so extensive as those of the trustees in the New York ease. It is provided in Section 33 of Article 9 of the plan that ‘ ‘ Questions of fact arising in the administration of these Regulations shall be determined conclusively for all parties by the Committee.” Under this provision it was competent for the defendant to refuse payment of plaintiff’s claim until the facts on which it is based had been determined in her favor by the committee. It has waived this right by admitting in the answer that the facts with reference to the employment of plaintiff’s husband and his accidental death while in defendant’s service are as stated in the complaint. Expressio unius exclusio alterius. The inference is that the committee has no authority to bind either the defendant or one of its employees by any decision on a question of law. It is provided by Section 1 of Article 8, quoted above, that plaintiff’s husband was entitled to life insurance. A right was created subject to the determination of the facts on which the right is dependent in the manner set out in
“In the event of the death of an employee no part of the death benefit or unpaid disability shall be due or payable unless and until good and sufficient release shall be delivered to the Committee, of all claims against the Employees’ Benefit Fund as well as against the Company, arising or growing out of the death of the employee, said release having been duly executed by all who might legally assert such claims. ’ ’
"We think that plaintiff should have tendered the release specified above and demanded the sum she claims from the defendant. Such tender should have been alleged in the complaint. In this respect, however, the complaint is aided by the answer. It appears from the defendant’s pleading that such a tender would have been unavailing as the defendant denies all liability to plaintiff. The law does not exact a vain thing. The allegations of the answer excuse the failure of plaintiff to make tender of the release called for by the provision above quoted: Merrill v. Hexter, 52 Or. 138, 144 (94 Pac. 972, 96 Pac. 865); Livesley v. Krebs Hop Co., 57 Or. 352, 367 (97 Pac. 718, 107 Pac. 460, 112 Pac. 1); Woods v. Wikstrom, 67 Or. 581, 601 (135 Pac. 192); Wallowa Lake Amusement Co. v. Hamilton, 70 Or. 433, 447 (142 Pac. 321). It should be noted in this connection that the acceptance by plaintiff of any money from the fund created by defendant operates to discharge defendant from any
“In case any employee or his beneficiaries shall be entitled under the laws of any State to any compensation, pension or other benefit greater than that herein provided, the amount paid to the employee shall be that prescribed by the statute.”
Plaintiff contends that the entire section of the plan from which the above words are quoted should be disregarded because the author of the plan had in mind compensation laws under which the benefits are paid by the employer and that the Oregon statute, under which the payments are made by the state, is wholly without the scope and purview of this section. We are not favorably impressed with this contention. The fund from which the state makes payments under the act of 1913 is supplied chiefly by contributions made by employers of labor. Most of the payments made to the employees and their beneficiaries are made indirectly by the employers. Giving to the plan the fair construction to which it is entitled, an intention is manifested that it shall be read in the light of the laws of the state in which the employee resides and in which he is injured. If the benefit to which he or his beneficiaries are entitled under the law is greater than the benefit provided by the plan, the larger benefit shall be paid and shall exclude any right to the smaller benefit for which defendant has made provision. If the amount provided by statute is less than that provided by the plan, the company shall pay to the employee or his beneficiaries such sum as, added to the
We have seen that plaintiff is entitled to recover unless her right is barred by the provisions of Section 32 of Article 9 of the plan. Under this section the burden devolves on defendant to show that the benefit provided for plaintiff under the act of 1913 is greater than that provided by the plan. Defendant’s showing is defective for the reason that plaintiff may marry within seven years from the death of her husband. It does not appear from this record that her benefit under the law is greater than that under the plan. Defendant, having failed to show this fact, has failed to make out its defense.. Plaintiff is entitled to judgment for $2,700, less the sum she shall have received from the
The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion. Reversed and Remanded.
Modified on Petition for Rehearing.
Former opinion modified April 9, 1918.
Rehearing
Petitions for Rehearing.
(171 Pae. 1049.)
Messrs. Dolph, Mallory, Simon S Gearin and Mr. Hall S. Lush, for respondent’s petition.
Mr. Virgil A. Grum, for appellant’s petition.
Department 2.
*244 ‘ ‘ that ever since the 15th day of March, 1915, the plaintiff has been receiving payments of $30 per month from the moneys set aside for her, and since the 31st day of May, 1915, has been receiving the additional snm of $6 per month on behalf of said child.”
The answer also pleads the stipulations of the plan on which defendant relies. We think that the allegations are sufficient to entitle defendant to the credits allowed it in the former opinion.
It is true that prior to the promulgation of defendant’s plan the states of Ohio and Washington had
The other contentions of plaintiff have been duly considered, but it would unnecessarily prolong this opinion to discuss them.
Defendant contends that we are in error in holding that the burden of proof devolved on defendant to show that plaintiff’s benefit under the Act of 1913 was greater than the benefit provided by the plan. Defendant cites Mercer v. Germania Ins. Co., post, p. 410,171 Pac. 412. In that case plaintiff sued on a policy of fire insurance written in favor of her husband. The policy provided that it should be void if the interest of the insured were anything other than sole and unconditional ownership. Plaintiff contended that defendant was estopped to rely on the above provision in the policy, but her estoppel was pleaded only in the reply. It, was held that she could not recover. The contract on which she relied was inconsistent on its face with her right of recovery.
In the case at bar there is nothing in the contract which on its face precludes a recovery by plaintiff. There is no presumption that defendant had accepted the provisions of Chapter 112 of the Laws of 1913, nor is such acceptance alleged in the complaint. Notwithstanding Section 32 of Article IX of the plan, plaintiff was entitled prima facie to recover. Her rights under the act of 1913 were a defense which it devolved on defendant to allege and prove. These conclusions are supported by the opinion of Mr. Justice Moore in Olds v. Olds, ante, p. 209 (171 Pac. 1046), decided April 2,
Defendant relies on Clark v. New England Tel. & Tel. Co. (Mass.), 118 N. E. 348. This case is based on a plan similar to that with which we are concerned. The Massachusetts court holds that where the facts are in dispute the finding of the committee thereon is conclusive. In the instant case the facts are not in dispute. The answer admits the facts on which plaintiff’s right to recover is based. The reasoning of the Massachusetts court is in entire harmony with our former opinion and the rule of' construction applied conforms to the views above expressed.
The former opinion will therefore be modified. The judgment will be reversed and the Circuit Court will be directed to enter a judgment in favor of plaintiff for $1,320. Former Opinion Modified.