Welsh v. Brotherhood of Railroad Trainmen

CONNOR, J. There is no allegation in the complaint in this action, nor was there evidence at the trial tending to show that plaintiff was totally and permanently disabled as defined in section 68 of the constitution and by-laws of defendant. Plaintiff has not suffered an amputation or severance of an entire hand at or above the wrist joint, or an amputation or severance of air entire foot at or above the ankle joint; he has not suffered the loss of sight of one or of both eyes, nor has he arrived at the age of 70 years. He has not become totally and permanently disabled as defined in section 68. Conceding that there was evidence tending to show that he has become totally and permanently disabled from doing the work of a trainman, as the result of falling from the top of a moving box ear, as alleged in his complaint, it is manifest that under the terms of the beneficiary certificate issued to him by the defendant, plaintiff cannot recover in this action, unless and until the said certificate and section 68 of the constitution and by-laws of defendant have been reformed, as prayed for by defendant in this action. Burton v. Ins. Co., 198 N. C., 498. The provisions of section 68 are so clear and free from ambiguity, that there is no room for a construction of the language of said section upon which plaintiff would be entitled to recover in this action, upon the facts alleged in the complaint and shown by all the evidence. Hinton v. Vinson, 180 N. C., 393, 104 S. E., 897. The vital question, therefore, to be decided on this appeal is whether there was evidence at the trial tending to show mutual mistake of the plaintiff *189 and defendant, witb respect to tbe terms of the beneficiary certificate issued to plaintiff by defendant, or mistake on tbe part of tbe plaintiff, induced by tbe fraud of tbe defendant, witb respect to said terms. “It is now settled that a policy of insurance may be reformed upon proper allegations and proof, as much as a deed or any other contract, and that is true even after a loss. But tbe reformation is subject to tbe same rules of law as are applicable to all other instruments in writing. It must be alleged and proven that tbe instrument sought to be corrected failed to express tbe real agreement or transaction because of mistake common to both parties, or because of mistake of one party and fraud or inequitable conduct of tbe other.” Britton v. Insurance Co., 165 N. C., 149, 80 S. E., 1072. Where, however, as in tbe instant case, tbe defendant is a fraternal beneficiary association and a reformation of tbe policy or certificate, as prayed for by tbe plaintiff, will result in an unjust discrimination among its members, ordinarily a rescission rather than a reformation should be decreed by tbe court. Graham v. Insurance Co., 176 N. C., 313, 97 S. E., 6, C. S., 6503. Conceding, as contended by plaintiff, but not deciding, that tbe secretary and treasurer of tbe subordinate lodge of which plaintiff is a member, was tbe agent of tbe defendant (O. S-, 6457), and that defendant would be bound by representations made by him as such agent to plaintiff, as a prospective applicant for a beneficiary certificate to be issued by defendant to plaintiff, in accordance witb its constitution' and by-laws, notwithstanding such representations were false or fraudulent, and not authorized by said constitution and by-laws (O. S., 6503), we are of tbe opinion that there was no evidence of such representations in tbe instant case. Tbe only evidence offered by plaintiff as to such representations was bis testimony, tending to show a conversation which plaintiff bad witb Mr. Snyder, tbe secretary and treasurer of bis lodge, after tbe latter’s return from a national convention of tbe defendant. It does not appear that tbe statement made in this conversation to plaintiff by Mr. Snyder as to tbe action of tbe convention was made for tbe purpose of inducing tbe plaintiff to apply for a beneficiary certificate, or that plaintiff relied on said statement, when be subsequently applied for tbe certificate which was issued by defendant. All tbe evidence shows that plaintiff can read and write and that he is a man of intelligence and business experience. He bad been a member of tbe defendant brotherhood for many years, and held certificates issued by tbe defendant. Tbe evidence fails to show a mistake common to tbe plaintiff and defendant witb respect to tbe terms of tbe certificate which was issued by tbe defendant and accepted by tbe plaintiff; it also fails to show fraud or inequitable conduct on tbe part of tbe defendant, its agents, *190 officers or representatives, by which plaintiff was induced to apply for and accept the beneficiary certificate, which he now seeks to have reformed. In the absence of such evidence, on the authority of well considered decisions of this Court, plaintiff is not entitled to a reformation of his contract with the defendant. Burton v. Ins. Co., 198 N. C., 498; Welch v. Ins. Co., 196 N. C., 546, 146 S. E., 216; Graham v. Ins. Co., 116 N. C., 313, 91 S. E., 6; Britton v. Ins. Co., 165 N. C., 149, 80 S. E., 1072; Clements v. Ins. Co., 155 N. C., 57, 70 S. E., 1076; Floars v. Ins. Co., 144 N. C., 232, 56 S. E., 915. Plaintiff has no cause of action against the defendant upon his allegation that the action of the beneficiary board of defendant in disapproving his disability claim under section 70 of the constitution and by-laws of defendant was arbitrary. It is expressly provided in said section that no action shall be maintained on a claim under said section until such claim has been approved by said board. "Whether or not a claim addressed to the benevolence of defendant shall be approved, is by the express terms of said section to be determined by said board in the exercise of its discretion. All the evidence tends to show that said board considered said claim and in the exercise of its discretion disapproved the same. Plaintiff by his contract expressly agreed that upon such disapproval, defendant would not be liable to him for his claim for disability under section 70. There was error'in the refusal of the trial court to allow defendant’s motion for judgment as of nonsuit. For this reason the judgment is Reversed.