Cordell v. Brotherhood of Locomotive Firemen & Enginemen

ClabksoN, J. At the close of plaintiff’s evidence and at the close of all the evidence the defendant in the court below made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions, and in this we can see no error. In 51 R. O. L., at p. 1421 — II. General Rules, is the following: “There is a decided conflict of authority on the question of the validity of provisions of the constitution, by-laws, or contracts of a mutual benefit association undertaking to make conclusive decisions of its tribunals or officers directly upon claims for benefits. What seems, however, to be the weight of authority holds that such provisions are contrary to public policy and void, and so will not preclude either the member, in case of a claim for disability or sick benefits, or his beneficiary or representative, in case of a claim for death benefits, from resort to the civil courts, if by its contract the association assumes an absolute legal obliga [639] tion to pay the benefits in a certain event, and does not merely engage to pay sucb benefits as may be awarded by its officers or tribunals.” Tbe N. C. case of Kelly v. Trimont, 154 N. C., 97, is cited. In 51 A. L. R., supra, at p. 1436, we find: “In Kelly v. Trimont Lodge (1910), 154 N. C., 97, 52 L. R. A. (N. S.), 823, 69 S. E., 764, it was said: ‘Our Court bas uniformly field to tfie doctrine that, when a cause of action fias arisen, tfie courts cannot be ousted of tfieir jurisdiction by agreements, previously entered into, to submit tfie liabilities and rights of tfie parties to tfie determination of other tribunals named in tfie agreement; but it has been also generally field that tfie agreement to submit tfie particular question of tfie amount of loss or damage to' tfie assured under an insurance policy is not against public policy, and is sustained. That is simply a method for tfie ascertainment of a single fact, and not tfie determination of the legal liability of tfie insurer.’ And stating it to be tfie rule now, with reference to agreements to arbitrate, that it is competent for such societies to contract that tfie amount of damages which may be recovered, or tfie existence of any fact which may enter into tfie right to recover, shall be submitted to arbitration, provided tfie right is not embraced in tfie agreement, tfie Court, in Nelson v. Atlantic Coast Line R. Co. (1911), 157 N. C., 194, 52 L. R. A. (N. S.), 829, 72 S. E., 998, field that a railway relief department may make tfie determination of its own tribunals conclusive as to tfie duration of tfie time in which a member is entitled to benefits, distinguishing tfie case from tfie Kelly case (N. C.), supra, upon tfie ground that in that case tfie agreement was to submit tfie whole controversy to- arbitration. It will be observed, too, from tfie quotation above, that tfie Kelly case in effect approved tfie rule which tfie Nelson case adopted.” In Nelson v. R. R., supra, at p. 207, it is said: “This is not in conflict with tfie opinion in Kelly v. Trimont Lodge, 154 N. C., 98. In that case it is stated that the plaintiffs were entitled, under tfie rules and regulations, to tfie sum demanded, and tfie defendant denied tfie right of action. It was field that an agreement to submit tfie whole controversy to arbitration was not binding; but it is distinctly stated that it was competent to agree that tfie decision of a single fact, such as we have here, could be submitted to a tribunal within the order. When a member submits fiis claim to tfie committee fie is entitled to a hearing, and is not concluded by its action if it is fraudulent or oppressive, of which tfie facts on this record furnish no evidence.” In S. c., 167 N. C., 185, tfie principle is reiterated that a party is not bound by tfie award of tfie committee if it is fraudulent or oppressive. In Cyc. of Ins. Law (Couch), Yol. 1, part sec. 266, pp. 666-7, tfie law is thus stated: “There is a decided conflict of authority on tfie question of tfie validity of provisions undertaking to set up society tribunals with [640] exclusive jurisdiction and conclusive decisions as to controversies wbicb involve property rights. The apparent weight of authority — at least, numerically as to cases and jurisdictions — denies validity to such absolute and arbitrary restrictions on the theory that they oust the courts of jurisdiction in violation of the law of the land; at least, where the society has assumed an absolute legal obligation to pay in a certain event, as distinguished from a mere engagement to pay such benefits as may be awarded by its officers or tribunals in the exercise of a discretion vested in them. Nor need remedies within the order always be exhausted where property rights are involved. And any rule which precludes a beneficiary from bringing an action in the courts, even though no remedies can be had within the order because of the default or non-action of its officials over whom the beneficiary has no control, is unreasonable and contrary to public policy. A benefit society or association cannot make itself a judge in its own case by requiring that all claims or cases shall be tried by its tribunal in the first instance. But even in jurisdictions which in general deny, or at least do not concede, the validity of provisions purporting to make the decisions of internal tribunals conclusive upon claims for benefits, an exception is made where the insurance contract expresses no legal obligation to pay any definite sum, but only to pay such sums as may be determined or allowed by the officers or tribunals of the society, the distinction being rested upon the difference between a contract which creates an absolute legal liability and one which does not.” 45 O. J., 270. In support of the text in 51 A. L. R., supra, cases from both North Carolina and Ohio are cited. Therefore, the point is not material as to the law of Ohio controlling. Then, again, N. C. Code, 1931 (Michie), sec. 6287, is as follows: “All contracts of insurance on property, lives, or interests in this State shall be deemed to be made therein; and all contracts of insurance the applications for which are taken within the State shall be deemed to have been made within the State, and are subject to the laws thereof.” Policies of insurance issued by foreign companies, the applications for which are taken in this State, are to be construed in accordance with the laws of this State. Horton v. Life Ins. Co., 122 N. C., 498. A provision in a contract of insurance that, “This contract shall be governed by, subject to and construed only according to the laws of the State of New York, the home office of said association,” is void in so far as the courts of this State are concerned. Blackwell v. Life Assn., 141 N. C., 117. See Modern Woodmen of Am. v. Mixer, 267 U. S., 544. In the present case the allegations of the complaint clearly bring the case under the jurisdiction of this State. The only question now under consideration in this jurisdiction was there any evidence to support the finding of the jury on the following [641] two issues: “1. Did the defendant unreasonably, arbitrarily, and in want of good faith, reject plaintiff’s claim for a monthly compensation on account of alleged permanent and total disability? Answer: 'Yes.’ 2. Is the plaintiff totally and permanently disabled? Answer : 'Yes.’ ” What was the evidence succinctly, taking the circumstances: The plaintiff was not in arrears under the policy and had, on account of total and permanent disability, been receiving $75.00 a month since 1927. On 19 November, 1931, he agreed with defendant to release his rights under the Relief Department and receive $50.00 a month under the Disability Benefit. In March, 1933, plaintiff was cut off and required to furnish evidence of his total and permanent disability. The following witnesses testified to the effect that plaintiff was totally and permanently disabled: The plaintiff; Dr. D. R. Bryson, an expert and plaintiff’s attending physician; Dr. A. O. Ambler, an expert who examined plaintiff at defendant’s request. The Local Lodge’s report to the General Secretary and Treasurer shows: “We beg to inform you that at a regular meeting of Lodge No. 455, held 23 May, Asheville, N. O., the above application for Disability Benefit Allowance of Brother Robert Cordell, of Lodge No. 455, was duly considered and approved.” The International President disallowed the claim, and on appeal the Board of Directors also disallowed it. Dr. P. R. Bennett certified to defendant, at its request, “that he is totally disabled, and it is my opinion he always will be.” On the trial, Dr. T. W. Folsom, an expert, testified: “I think the plaintiff is permanently and totally disabled,” and has been in that condition three and a half years. G. N. Denton, Financial Secretary of Blue Ridge Lodge, testified: “I have observed his physical condition. He has been sick for the last 10 or 12 years to my knowledge and I, as an officer of the defendant, knew that.” Dr. Charles Hartwell Cocke, an expert, testified: “I would say that my opinion is, from the nature of the disabilities that I have observed in Mr. Cordell, that he has been continuously disabled and totally disabled from gainful occupation since I first knew him, in December, 1927.” Plaintiff’s wife’s testimony is to like effect. The plaintiff was unable to travel to Ohio to appear in person before the committee which cut him off. The testimony of Dr. Edward W. Schoenheit, the witness for defendant, was to the effect, “I don’t know whether I can give an exact answer as to what I found Mr. Cordell was suffering from in October and November, 1933; but I was asked to try to find a diagnosis at that time, whether or not he was suffering from active tuberculosis; whether or not tuberculosis was the cause of his present disability,” etc. Under the policy plaintiff was entitled to recover for total and permanent disability from engaging in any occupation, etc. Dr. Schoenheit was directed by defendant to diagnose “Whether or not he was suffering [642] from active tuberculosis; whether or not tuberculosis was the cause of his present disability.” It would appear that defendant had the idea that if plaintiff did not have active tuberculosis plaintiff would be cut off, although he was totally and permanently disabled. This was not defendant's contract with plaintiff. It appears that all the positive evidence was to the effect that plaintiff was totally and permanently disabled under the provisions of the policy. Ur. Schoenheit’s evidence was not to the point in controversy and negative evidence. It has been long settled in this jurisdiction that positive evidence is entitled to more weight than negative testimony. State v. Murray, 139 N. C., 540. The temporary holding of the position of justice of the peace is not material from the evidence. We think all the evidence shows “a state of bodily incapacity.” Gossett v. Ins. Co., ante, 152. Notwithstanding all the positive evidence, and, in fact, it may be conceded that all the evidence as to the total and permanent disability of plaintiff under the recovery clause was one way, the defendant’s Board of Directors denied plaintiff’s right for compensation under the policy. We think the matter was properly left to the jury. The charge of the court below to the jury was fair and impartial, applying the law to the facts. In fact, there was no exception and assignment of error to any part of the charge. The second question presented: “Did the court err in excluding the constitution of the defendant from the evidence?” We think not. All the material parts of the constitution of the defendant that bore on the controversy were allowed to be introduced. The constitution, including index, is a book comprising 391 pages. At least, there was no prejudicial error. ■ The third question presented: “Should the recovery have been limited to the Disability Fund and the Disability Benefit Department of defendant organization?” This action was against the defendant. It contended that it owed plaintiff nothing. Under his Beneficiary Certificate, the plaintiff did not sue a department of defendant, but the defendant. In fact, he could not sue a part of defendant’s activities. Under the present judgment defendant can pay plaintiff out of its Disability Fund and the Disability Benefit Department. It is a matter of bookkeeping on the part of defendant. On the entire record, we see no prejudicial or reversible error. No error.