*1 agent Beeves, of W. then should Beeves as servant T. the verdict against plaintiff be for the both defendants. clearly instruction the defendant W. T. Beeves
The as to was er- opinion disposing "What in this in first roneous. has been said the made, point relating the the instruction peremptory to refusal of directing at the close of all evidence of the in the 'case verdict Beeves, disposes point the W. T. in It defendant his favor. again unnecessary said. is no evi-
is to set out what is there There jury from which the could that the William N. dence find defendant acting agent was or servant of the defendant T. Beeves Beeves W. as at the time the accident. The fourth made court point
9. defendants is that com- plaintiff’s mitted in giving error Instruction No. 3. instruc- This clearly tion was as to erroneous defendant W. Beeves. It T.
charged jury, effect, that, jury if found that the defend- negligent ant William Beeves was in the automo- operation N. of his bile, negligence injury which contributed the plaintiff, then jury might though plaintiff, operator find for the even car riding negligent. motor on which also . it,
instruction was erroneous. Under N. found if William Beeves was negligent, might then jury only against find for the plaintiff not against him but also T. no W. Beeves. There was any judgment basis in record for against verdict or the defend- ant T.W. Beeves. point
10. The fifth made is erred defendants the court each of them overruling as to their motions for a new trial. This point seems, however, not to have been carried forward in the brief upon. or bemay insisted It treated is, as waived. If not waived, it nevertheless, general present anything too for review. prejudicial no error
We find in the record as defendant Wil- judgment liam N. Beeves. as reversed to the defendant W. T. affirmed to the
Beeves and defendant William N. All con- Beeves.
cur. Respondent, Roberson, L.
Harrison v. Brotherhood of Locomotive Appellant . 114 S. W. (2d) 136. Enginemen, Firemen & City Appeals. Kansas Court November 1937. *3 Heiss,
Harold C. Edward E. Naber and Samuel M. Garmean appellant.
G. B. Burns respondent.
P. E. Reeder Wmger, J. Charles Curiae. Amici SPERRY, Roberson, plaintiff below, C. J.—Harrison L. sued n Enginemen, Brotherhood of Firemen and defendant be- Locomotive low, alleged disability on an contract benefit insurance. Plaintiff will be referred appealed. parties defendant
prevailed and plaintiff and court. hearing of at conclusion parties jury waived a *7 writing in conclu state requested the court to party each evidence required law, may as be conclusions of separately of from fact sions 952, Statutes Revised provisions of Section under the in cases such of conclusions certain make Missouri, court refused to of 1929. The requested by defendant. were submitted fact which and and of law excepted to exceptions; and it also saved refusal defendant To this by court. law as declared findings of fact conclusions of and urged and are urged grounds new trial for a as These matters were a to deter record with view examine error. We will here as law, declared fact and as of of whether not the conclusions mine or Johnson, Mo. 96 court, substantially supported. are [Steele Forsee, Mo. 156; App. 147, Loewen v. a that vol- disclosed defendant pleadings and the evidence Lodge, many union, with Grand sub- a untary, unincorporated labor members in the United States lodges, and with thousands of ordinate govern- representative it a form of foreign countries; that and has ritualistic practices a and secret ment and laws with constitution exclusively to one class lodge work; its membership that is confined to-wit, occupation, persons engaged single are in a hazardous who of that enginemen; and persons locomotive firemen and employed as business, profit, for exclu- it carries without on an insurance sive benefit of its members. a employed while as evidence further discloses that 1914; that engineer, a of defendant in became member
locomotive department a or in policy him certificate its relief issued department, 1928; 1928 he pension prior and also in its to that in good standing order to be was in in the and the above certificates totally performance in became full force disabled for when he any was, a engine; work that he there- on locomotive and sometime after, employment by the he then company taken out of railroad granted pension by worked for. He was a defendant under provisions 1931, “pension” Defendant, in at a department. its regular Lodge, and convention its constitution Grand amended by laws and for departments, abolished its “Relief” and “Pension” By departments financially the reason both were that insolvent. appropriate “Disability Department,” it a action established Benefit adjudged the provisions under of which its who members then were “totally” permanently to and re- be disabled and who were then ceiving department, benefits pension releasing from the upon defend- from any rights ant all claims account of on on such members had department, “pension” permitted account of the would be to be- “Disability Department.” members of Benefit come Plaintiff defendant, him advised of all of letter sent these facts August 26, 1931; 11, 1931, dated advised and on December he was adjudged pro- he totally permanently that and to be disabled governing “Disability Department,” vided in the law Benefit exchange department and that, for his release of “Pension” payment per thereafter, $1.25 and month he would assessments be immediately “Disability Department” transferred Benefit immediately $50 receive at the and would benefits therefrom rate of per signed release, instru- month. Plaintiff such written in which ment it was stated that purpose it was consideration being given Depart- “Disability his Benefit under benefits February 1, ment.” He $50 month until per received thereafter examination, physical when him defendant notified which made up had caused to be of him in routine cheek on November its had “totally permanently shown he was not dis- disability applicable abled as defined in the laws” of defendant *8 afore- benefits. Dr. testified for made the Brennan defendant that he physical thereof, said examination stated in the and result evidence findings thereon, and and based were to his recommendations which not, date, effect that plaintiff totally permanently the was on said and performing directing any disabled from or work but that he could light do work. plaintiff
There on was evidence behalf of that he had effect the continuously, trial, been was, since 1928 until date of then and wholly perform any work; unable to two he suffered from in hernias, guinal anemia, pressure, low blood heart ner -action, bad vousness, shaking; and excessive and uncontrollable he could fires, shoes, not build his or sit quickly tie down or without arise becoming dizzy; moderately and that he could not endure even cold trial, weather. He was He at the uneducated. was time of about sixty-two years age, and a city of was of council Brook- member of earnings field. sole 1928 salary His since had been his as-council man, per year. upon $100 which was This was sufficient evidence finding continuous, disability which to base a of total and permanent meaning within of constitution and laws of defendant which required claiming “Disability one Depart under Benefit “totally ment” to be and from permanently engaging disabled any occupation, profession or performing or business from di or recting work any profit.” for remuneration or v. The [McMahon Supreme Council, 468, 473; App. Young Metropolitan 54 Mo. c. l. 1065, Company, 1069;
Life W. l. Insurance 54 c. S. Kane Metro politan Company, (2d) 826; Life Insurance S. W. Heald v. Aetna Hartford, Company (Mo.), Life Insurance (2d) Conn. W. S. 383;
379, l. c. Insurance Company Buis Prudential of Amer ica, 127, In (2d) W. it 77 S. this connection will
íes entitled “pension” department noted that be under so totally permanently and disabled he to receive benefits if became engine, where- any work a locomotive perforin as not to be able on so department he must be as, provisions disability under thereby “from prevented totally and as to permanently disabled be preform- from engaging' any occupation, or business or profession, (Ital- . . directing profit. or .” ing any or for remuneration work nature ours.) plaintiff’s lack education and the Considering ics con- his disability, 1928 until continuity of his from and and ruling at in Buis v. Prudential trial, dition the time we think our supra, Company, peculiarly here. applicable Insurance original pension claim Defendant, however, for contends that disability resulting by plaintiff pernicious as from filed recited his be then anemia, did not him to whereas the evidence at trial show they disease, and, say, if he once had suffering pernicious from such always is incurable. From anemia he would it because it have premise false application pension reasoned that stated ground plain- therefor. hold that the medical evidence We offered finding tiff from a formed a sufficient basis for a that he suffered malignancy, pernicious witnesses. as anemia one described Furthermore, plaintiff, December letter dated defendant’s own “report your medical examination in case stated you disabled, provided in the totally permanently shows are ours). (Italics governing Disability Department.” law Benefit only permit plaintiff a member of Defendant could to become totally then department'in that he last mentioned the event from disabled; did not then matter what cause permanently and it originally letter, and is es- disability arose. is bound its It *9 11, deny was, December topped plaintiff 1931, to on disabled that disability that immate- and cause of was at time required; as the his change overwhelming that evidence no for the better rial. showed in from plaintiff’s condition time until date of trial. that beneficiary bus doing
Defendant was is a fraternal insurance and by governed in of will be iness Missouri its contracts insurance and applicable the law v. Brotherhood of to such contracts. [Bennett 25, (2d) 106 W. Enginemen, Firemen and S. l. Locomotive 26; (2d) 409; Lodge, v. Grand 43 S. W. l. c. Elliot v. c. Clark Lodge, Ry. Trainmen, (2d) 95 Grand Brotherhood of S. W. 6021, 829, provisions 1929, R. S. Under the of Section 833.] exempt 13, Chapter provisions from all the of Article defendant is of beneficiary companies. 37, R. which fraternal 1929, governs S. Mo. applies to the ease at bar. Grand part Therefore no of same [Elliot Ry. 829, Trainmen, (2d) 95 W. Lodge of l. Brotherhood S. beneficiary is a fraternal insurance' com c. Since 833.] character, is one of that it that sued on follows pany and contract the application, by laws of de and the and policy, constitution of the contract together forming all fendant must be considered as Royal League, 168 W. insurance. S. [Claudy laws as declared of fact and apparent, It from the conclusions of court, find make by from the to and the trial as well as court’s refusal by requested defend of and of fact so to do other conclusions law as ant, theory that con on the that determined the case court line” insurance governed relative to “old tract sued on is law judgment be theory. But if contracts. This was an erroneous wrong on right though even at party, low for the was arrived was rest, theory upon law it must or from which different of Fidelity Life yet appeal. Mutual affirmed it should be on [Aloe Ben 993; Security Wilhelm v. Assn., Mo. l. 55 W. c. S. Assn., (2d)
efit 104 S. W. l. c. 1046.] plaintiff positive declar- is bound defendant contends But him an irrevocably and that commit to pleadings in same ations his he and that entirely theory upon different than that which recovered “Disability Benefit De- he disclaims therein that he claims under claim partment.” plaintiff Of must recover because his course all, Department” recovers “Disability Benefit if he at account of signed applica- conclusively and he is bound his written because renunciation, therein, in the same for and his membership tion might “pension” depart- instrument, rights of all he have under department pleaded were provisions of the' “pension” ment. The 11, 1931, in from defendant petition his as the letter December was de- plaintiff, him his under soliciting to release one claims other; pleaded he partment and become member also under and terms, provisions of “Dis- acceptance setting of these out the his ’’ alleged that he transformed to ability Department, Benefit paid department and therein and received benefits all assessments February 1, 1934, his therefrom until defendant discontinued when given plaintiff for benefits. These facts were in resume counsel During an- opening the course of the trial the court statement. only facts pleaded that he that certain were nounced understood leading pleading the “Disabil- up or matters “inducement” Department” obligation ity and counsel stated Benefit true. that that was law, inartificially plaintiff’s are some stated
There conclusions claiming might under reply which induce the belief he not Department,” also in his brief. But we “Disability Benefit pleaded speak facts for themselves show the cause think the upon rights plaintiff’s under the “Dis- pleaded be based action *10 construing pleadings In we look to ability Department.” Benefit legal and the pleadings plead- of conclusions of the the the substance the of pleaded, of action as the same the nature cause er not alter do by disclosed stated. stand on his de- facts Defendant did not pleaded but murrer over and offered evidence. It abandoned thus supported the demurrer. at al- The adduced the trial evidence legations petition. by provision
The that constitution and laws of defendant contain any aggrieved any by in case shall action taken member feel himself any member, by authority defendant, constituted or his lo- of said lodge, may higher appeal cal from decision to authorities said lodge, therein; of in the order and manner mentioned also and provided against shall in court no suit be instituted rights of until appeal law after all of have been exhausted within lodge. plaintiff step lodge It is conceded that took no to within obtain such prior redress to institution this Failure to do suit. so urged below, urged here, and is action. a bar to this general secretary given power, and treasurer under laws, plaintiff’s defendant’s constitution and to discontinue ben when, cause, good longer efits he deemed' to be no entitled thereto. Plaintiff from in appealed could have such decision ternational from an there president, and adverse decision he could appealed have But, to the board of directors. if he had exercised rights him, appeal, against these final and had been decision thereby; he would not he have been bound could then resorted have to the courts. is so whether This or not constitution and laws provided. Maccabees, so Mo. But defendant [McMahon 523.] contends that in principle case announced last does mentioned action, govern lodge not this because here the action of authorities was not made final the constitution, but that he could thereafter sue respect Maccabees, In court. from McMahon v. case differs supra, but it -general still falls within the laid rule down. All there requirements tested, analysis, such rules and are to final be in the Maccabees, determining whether or not they are reasonable. [McMahon sup ra; Risinger Independent Foresters, Order of 158 Mo. App. seq.; Lodge, App. l. c. et 113 Mo. Kane v. Ohio, headquarters Cleveland, the order is at where the
International President Any appeal prosecuted his office. maintains require him claimant, before would that the if he desired to per be sonally present, there go purpose. for that is true The same anof appeal require to the This board directors. claimant would journey state, foreign to a and at expense different considerable time; appeals provided prosecute and to successive for would re might quire delay accomplish nothing undue but merely result finally compelled being in his sue the’courts of the State. Or require doing dinarily not the courts will an unreasonable and legal resorting remedy act before to a in court. useless ex [State
171 The sit W., 456, l. Lodge, rel. Grand A. Mo. c. App. O. U. 70 in analogous discussed presented those uation here is to situations Risinger Foresters, supra, and Kane v. Independent Order of rule, a Lodge, supra. we think such While those were death claims disability ben enforced, if would unreasonable in the case be more the ben very purpose than in case of death claims. efits to with necessities provisions provide efit in this case is claimant money had during inability living. to a If of life his earn he expenses prolonged procedure, pay or to pay living during to his Cleveland, Ohio, twice, probably he would from expenses his to and all; time he would carrying by certificate not be the benefit at might law his claim at he finally permitted actually be enforce to had living. We hold that go to earn a he able to work and flatly pay to him right to after refused sue in this case gave him no condition and any more benefits on account of his then be February following, would cheek, tice that the to received in be his last check on account of claim. his Conductors, 151 Railway
We have Order of examined Crutcher v. 622, defendant, between our App. hy Mo. cited find no conflict property holding in No holding this case and of the court there.
right directly involved, pointed as or insurance contract was there Verein, 206 ex rel. out the court. State v. Tower Grove Turn or 242, solely concerning with S. W. also deals internal matters right involved; and State property der and there is no or insurance Sisters, (2d), Supreme Pythian Temple ex rel. v. S. W. court, exclusively a mandamus action with likewise deals in from order.
right expulsion a reinstated of member to be after also Yeoman, App. 154 Mo. is v. Brotherhood of Am. Easter court second harmony herewith. came to this in The latter case an time, pay failed to Yeoman, App. 172 Mo. 292. Insured Easter v. thereafter, tendered but thirty days assessment when due or within during col sixty day period, as in contract. The provided it in health the claimed ill accept lector refused same because of held to steps took further reinstate and sured. Insured no facts policy. distinguished it from the abandoned facts have McMahon in The case of here and those other Missouri decisions. Council, with Supreme App. 468, 54 Mo. in direct conflict
v. The
supra. We
Maccabees,
Supreme
Court ease of McMahon
later
Union, 33 S. W.
in
aware
Shaw v. American Insurance
are
con
(2d) 1052,
Appeals
Court of
have
the St. Louis
seem
differently.
of the above
eases
strued the
some
mentioned
effect
the cases
a distinction
as
But we think
has overlooked
made
exclusively
right
that dealt
with some
of member
between
laws
lodge,
participate
dis
government,
or to
in its
ship,
sit in the
as to
rights
property
dealing with insurance and
tinguished
from laws
primarily.
In
secondarily
cases where
rights
only
insurance
were
involved, the decisions
holding
are almost
unanimous
courts will
jurisdiction
not take.
of matters
to the
pertaining solely
workings
lodge,
at least
internal
exhausted all
not until
member has
provided
remedies
therein.
Household
[Eminent
*12
Payne,
Columbian Woodmen
88
454, l.
too,
Southern
c.
Then
v.
455.]
primary
matter
before
court in the
case, supra,
Shaw
one
was
waiver;
of
and it
ground.
was
on
decided
that
Defendant has cited decisions
jurisdictions
from other
holding a
view, notably
different
v.
Skrivanek
Brotherhood of
Fire
Locomotive
men
Enginemen,
and
111,
ease;
269 N. W.
Myers
a Minnesota
et
and
Jenkins,
al. v.
Ohio, 101,
63
many
and
equally
others. But
numerous
strong
and
authority
support
conclusions,
of our
which
hold
we
rule,
be
may
Missouri
be
jurisdictions,
cited from other
to-wit:
Household,
Eminent
of Columbian
(Miss.),
351,
Woodmen
79 So.
l.
353;
c.
Eminent
of
Household
Columbian
Payne
v.
Woodmen
(Ala.),
454,
88
455;
So.
l. c.
Employee’s Ben. Ass’n of Calument &
Arizona Mining Co., et al. v.
(Ariz.),
Johns
249
764;
Pacific
Sandor
Verhovey
v.
Association,
Aid
199;
199 Ill. App.
Nikolich v. Slov
Podporna
enska
(N. M.),
Nardons
Jednota
by Dr. R. J. Brennan was barred from evidence. No are authorities presented assignment. on this There injury could have re- been no sulting to defendant being evidence, reason of its barred from even if it were properly which we hold. admissible do not The wit- permitted to, ness was did, refer report to the to refresh his recollection, and his evidence reading amounted to a re- the entire port into question record way However, and answer. we know of rule of permits reception no law that records, of such private agent made of defendant, testifying against him, with a view to in evidence. It not hospital the same as a record.
It is contended that fact conclusion of entered of record court do not all embrace constitutive facts of the With case. setting length,
out out such conclusions here at we have examined same and find they requested do not. When to do in a so case jury, at law tried without a must fact court state conclusions separately law; from conclusions of and such of fact must conclusions every except include constitutive fact such as are in the admitted pleadings controversy. or those about which there is no [Fahy *13 Springfield 75; Emerson, Co., App. l. Bailey Grocer Mo. c. App. 220, l. 225; Thomas, Mo. Coehron v. 131 Mo. l. c. 268.]; erroneous, fact Supreme findings Court held that where are facts, here, duty not all of the is our
or do include constitutive Davis, proceedings. for further reverse remand [Korneman .904, 219 S. W. cause reversed and remanded Because of errors is mentioned Campbell, C., harmony herewith. concurs. proceedings for further opinion C., adopted foregoing PER CURIAM:—The Sperry, All cause is reversed and remanded. opinion as the court. The concur.
MARCH, 1938. Kresge Appellant. v. S. S. Cannon, Respondent, Company,
John (2d) 116 W. S. 559. City Appeals.
Kansas Court of March 1938.