Brotherhood of Locomotive Firemen & Enginemen v. Aday

Kirby, J., (after s-tatin-g the facts). It is contended first that, if appellant had permanent paralysis of his hand, it was not “permanent paralysis of either extremities,” within the meaning of the constitution of the -order; second, that he was not thereby “permanently and totally disabled or incapacitated from performing all manual labor” and entitled to the amount of his beneficiary certificate; third, that the court erred in giving a peremptory instruction in favor of plaintiff. The contract, and constitution relating to it, should be construed according to the plain and obvious meaning of their provisions and with a view to accomplish the purpose for which the brotherhood is maintained and persons become members thereof; and as this court said in Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417: “The contract sued on is like any other insurance policy, and its provisions should therefore be construed most strongly against the insurer. As the language employed is that of the defendant, a construction will not be adopted which will defeat a recovery if it is susceptible of a meaning that will permit one. American Bonding Co. v. Morrow, 80 Ark. 49; Title Guaranty & Surety Co. v. Bank of Fulton, 89 Ark. 471.” 1. The extremities of the body are four in number, and “either” is one indifferently, any one of them; and the permanent paralysis of a hand resulting from a cut on the arm brought appellant within the meaning of the term “permanent paralysis of either extremities” as expressed in section 70 of the constitution. 2. The purpose of the brotherhood, and the object of the contract, was to protect the beneficiary from the loss of time and wages caused by disease and injury, and provide a fund for his support if the injury “totally and permanently disabled him from the performance of all manual labor;” in other words, from earning a livelihood. “Total disability does not mean absolute physical disability on the part of the insured to transact any kind of business pertaining to his occupation. Total disability exists, although the insured is able to perform occasional acts, if he is unable to do any substantial portion of the work connected with his occupation. It is sufficient to prove that the injury wholly disabled him from the doing of all the substantial and material acts necessary to be done in the prosecution of his business,” etc. Kerr on Insurance, § § 385, 386; 4 Joyce on Insurance, § 3031. Our court said in Industrial Mut. Ind. Co. v. Hawkins, supra: “Total disability is necessarily a relative matter, and must depend chiefly on the peculiar circumstances of each case. It must depend largely upon the occupation and employment and the capabilities of the person injured.” The testimony shows that appellant was a locomotive fireman and engaged in the railroad service; that he took this beneficiary certificate to indemnify him in case of loss of time and wages occasioned by injury from the hazard of his employment or the diseases specified in the contract that might destroy his ability to continue therein. The undisputed evidence shows that because of this permanent paralysis of his hand he is not longer able to perform any railroad or train service whatever, and has been compelled to retire from such service because of said injury. It incapacitated him, not only from some of the duties incident to his service in some lines of railroad employment, but from the performance of all the duties of every kind in that service — the only one to which he was trained and accustomed, and in which he was employed at the time of taking membership in this brotherhood, whose purpose was to protect him while engaged in such service. It was evidently the intention of the parties to protect the beneficiary and permit him to recover the full amount of his certificate upon the occurrence of any one of the causes specified when it permanently and entirely incapacitated him from all service of any bind whatever in the railroad employment. Section 69 of the constitution of this order lends weight to the correctness of this view and construction, since it allows a beneficiary member sustaining the loss of a hand or a foot by actual separation to receive the full amount of his beneficiary claim; and we can see no difference between the total incapacity of the member by the loss of a hand by actual separation and its absolute loss of usefulness by paralysis thereof, and hold that it was such a permanent and total disability as was in the contemplation of the parties in the making of this contract. 3. That the court erred in directing a verdict for appellee. The undisputed testimony showed that his left hand was paralyzed, that the four fingers of it were atrophied or “dead, no feeling in them at all,” as he expressed it; that he was unable to grasp anything; that he had very little grip in his thumb, and that his 'hand was getting worse all the time; and that because of it he was unable to perform, and compelled to retire from, any further railroad service whatever. Two of the three experts employed .by appellant to examine him' testified that the left hand was paralyzed and the disability permanent, and the other that without an operation it was permanent paralysis; and the proof was undisputed that his condition was such that he could not procure the service of such an eminent specialist as would be able to perform the operation that might result in preventing the disability from continuing permanent. There was no conflict -in this testimony. It was undisputed that his left hand was permanently paralyzed unless, as one expert thought, it might possibly be -cured by an operation by such an eminent specialist as the undisputed testimony showed he had no means to employ. Under our view of the case, there was no question for the jury, and the court did not err in directing their verdict. Judgment affirmed.