Brotherhood of Locomotive Firemen & Engineers v. Nash

⁶²⁶ Pattison, J., delivered the opinion o-f the Court. Erank Hash, the husband of Cora Hash, the appellee, was the holder of a beneficiary certificate issued to him by the Brotherhood of Locomotive Firemen and Engiinemen, by wbicb bis wife, tbe beneficiary named in tbe certificate, in the event of his death, was to receive from the beneficiary fund of the brotherhood the sum of fifteen hundred dollars, upon proof of his death being furnished as required by the constitution, rules or regulations of the brotherhood. At the time of the issuance of the certificate, Hash was employed by a railroad company and resided at Brunswick, Md., but his services were thereafter dispensed with by the company because of his excessive use of intoxicants. After his discharge by the railroad company, he continued to reside at Brunswick with his family, consisting of his wife and three children, doing contract work between Cumberland and Brunswick.

This work he continued to do until about a week prior to August 7th, 1913, when he returned to his home and there remained until the day last named, when he left home to seek employment. It is not shown by the record that Hash said where he was going in search of work, thougjh his wife', as she says, was of the impression he was going to Baltimore. He on previous occasion® had left hi® home and found work elsewhere, hut on those occasions, as stated by his wife, he occasionally wrote to her and returned to his home at or around Christmas. After leaving on August 7th, 1913, she heard nothing from him and, becoming anxious', sba instituted search for him.

In her efforts to find him she went to Baltimore and while there she visited the morgiue, where she examined the records, and found a description of one whot had been taken from the harbor in September, 1913, the month following the departure of Hash from his home at Brunswick, and from the description given she was inclined to' believe that it was the body of her husband. The body referred to had been buried in the potter’s field and, as she stated, she applied to one or more of the officers ⁶²⁷ of the local branch of the brotherhood to have it disinterred in order that it might be ascertained 'whether it was the remains of her husband, but failing in her efforts to have them do so, she, on the 7th day of July, 1914, had the body exhumed. It was at that time in an advanced stage of decomposition, but Mrs. Nash, as well as her sister, who had accompanied her to the potter’s field, testified that the body they there saw was that of Frank Nash. After its reburial, Mrs. Nash again saw certain of the officers of the local branch of the brotherhood and asked them, to have the body again taken np that it might b© shown to be that of her husband.

This the officers refused or failed to do. It is evident that they had no confidence in the claim of Mrs. Nash that the body she had exhumed was that of her husband, especially in view of the statement of a conductor upon the railroad, who knew Nash well and who had worked upon the road with him, that, on or about Christmas, of 1913, after the burial of the party mentioned, he had seen Nash upon his, train, and had spoken to him, calling him by name, and Nash had returned his salutation. The officers of the brotherhood, whom she approached on the subject, expressed to her their non-belief in her claim that the body she had seen was, the remains of her husband; and it seems, that she then determined not to push the matter further at that time, but, to wait the lapse of seven year's, when, as she says, she was told by them, her husband would be presumed to be dead, if not heard from in the meantime; and it was pursuant to- such determination that she thereafter made application to the local organization to pay her husband’s, dues to the brotherhood, that he might be kept, in good standing during such waiting period. This the brotherhood ■did for several years, until May, 1917, when she was informed by an officer of the brotherhood that the dues would not be longer' paid by it, saying in addition thereto that, bv the constitution and by-laws of the brotherhood his disappearance for seven years without having; been heard from would ⁶²⁸ not entitle her to receive the amount named in the certificate, unless his death was otherwise shown by “positive” evidence.

On the 10th day of September, 1918, Oora Nash, the appellee, brought suit in this case to recover said amount. A demurrer was sustained not only to the first nar. filed, hut also to the first and second amended declarations. The case however went to trial, in November, 1920, on the third amended declaration, and a verdict was rendered thereon for tlie plaintiff for the sum of fifteen hundred dollars, but upon motion of the defendant a new trial was granted. The ease ag;ain proceeded to- trial on May 31st, 1921, that trial resulted in a verdict for the defendant, and again a motion for new trial was filed and granted.

In the third trial a verdict was rendered on the 20th day of September, 1922, for the plaintiff for the sum of twenty two hundred and twenty dollars; and, although a motion was filed, a new trial was not granted, and judgment was entered upon the verdict. It is from that judgment this appeal was taken. In the progress of the trial thirty exceptions were taken, twenty eight to the court’s rulings on the evidence, one upon the prayers and one to the action of the court in its refusal to instruct the jury to 'disregard a statement made to the jury by plaintiff’s counsel in his doting argument. The dedaration upon which the case was tried the first and second times, and tire one upon which the third trial proceeded to the conclusion of the plaintiff’s evidence, when amended by the filing of an additional count, consisted of three counts.

The first, “for money received by the defendant for the use of the plaintiff as set forth in the beneficiary certificate * * * issued by the defendant to the plaintiff”; the second, “for money found due from the defendant to the plaintiff on accounts stated between them as set forth in” said certificate; and the third, a special count, in which the certificate is set out in full and which contains the allegation that “Frank ⁶²⁹ Hash, died sometime prior to July 8th, 1914. That on July 8th, 1914, the beneficiary, Cora Hash, plaintiff herein, acquired knowledge of the fact of the death of said member, and that proof of death was made within sixty days from the time the beneficiary acquired knowledge of the fact of the death of said member; and that demand was made upon the officers of the defendant organization for payment of the amount dne under said beneficiary certificate, but payment was refused.” To each of these counts the defendant pleaded “never indebted” and “never promised,” as alleged, and limitations, alleging therein that the cause of action did not accrue within three years before the institution of the suit. On the first and second pleas the defendant joined issue, and demurred to the third, which demurrer was sustained. The fourth count, which was added at the conclusion, of the plaintiff’s evidence, after again setting out the certificate in full, alleged that “Frank Hash died sometime prior to July 8th, 1914.

That on July 8th, 1914, the beneficiary,. Cora Hash, plaintiff herein, acquired knowledge of the fact of the death of said member and that notice of the identification of said Frank Hash was given to the defendant by the plaintiff on or about July 8th, 1914, which was within sixty days from the time the beneficiary acquired knowledge of the fact of the death of said Frank Hash and the defendant waived the filing of further proof of death of said Frank Hash, and although demand has been made upon the defendant for payment of the amount due. under said beneficiary certificate, payment thereof has been refused.” A demurrer to this count was filed and overruled, whereupon the general issue plea was filed. It was upon the pleadings stated that the judgment appealed from, was obtained. The plaintiff offered five, prayers., of thesei, only the 5th prayer, upon the measure of damages, was granted.

The defendant offered seventeen prayers, the 1st, 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, 12th, 13th, 14th, 15th and 17th. of which were refused while the 6th, 7th, 8th and 16th were granted. ⁶³⁰ The first five prayers asked for a directed verdict against the plaintiff np'on the following grounds: the second for want of evidence legally sufficient; the first for the want of evidence legally sufficient under the pleadings; the third for want of evidence legally sufficient to show “that the plaintiff furnished to the defendant satisfactory proof of the death of her husband, Frank Hash, Within sixty days after she acquired knowledge of the fact of said death, or that the defendant, acting through some officer with authority to> do so, waived the filing of satisfactory proof of death.” The fourth was for causes, in effect, much the same as those mentioned in the third prayer; and the fifth, for wian-t of evidence legally ■sufficient “to show that the suit was commenced within six months from the final rejection of the plaintiff’s claim by the defendant, as required by the benefit certificate, constitution, rules and regulations of” defendant. In passing upon these prayers, it will be necessary to> set out, to some extent, certain provisions of the certificate, constitution and rules of the brotherhood, and to state quite fully the evidence found in the record. It is stated in the certificate, as well as in the constitution, that “all rights of action by the beneficiary upon this certificate shall he absolutely barred unless proof of death, as required by said constitution, shall he made within sixty days from the time that said beneficiary lias acquired knowledge •of the fact of the death of said member, and * * * any action under this certificate * * * by * * * the beneficiary designated herein shall he absolutely barred unless such action shall he commenced in some court of competent jurisdiction, within six months from the final rejection of the claim.” The procedure to be followed in the event of the death of •one of the members of the brotherhood and the meaning of “proof of death” when applied in such cases, may be gathered from section 75 of the Constitution of 1907, where it is stated: “Upon the death of a beneficiary member in good standing, it shall be the duty of the secretary of the ⁶³¹ lodge, of which, the deceased was a member, to immediately make a statement thereof under the seal of the (local) lodge. There shall also be issued a sworn statement and a certificate of death by a coroner or by the attending physician, which shall state the date of the injury and cause of death.

The collector shall issue a statement under seal of the lodge certifying to the good standing of the member at the time of his death. Affidavits of at least two reputable witnesses shall be filed with the grand secretary and treasurer, which prove the death of the member. If a physician was in attendance at his death his affidavit shall be filed, or if a coroner held an inquest upon his remains, his affidavit shall be filed. At least one sworn proof of death, shall positively identify the deceased as being the member of the brotherhood whose death claim is filed.

The secretary shall forward these statements, together with the beneficiary certificate of the deceased, to the grand secretary and treasurer, who shall adjust the claim, if the same is found to be valid.” As already said, Frank Rash, the husband of the plaintiff, left Ms homo in Brunswick, Mid., on August 7th, 1913, to seek employment elsewhere, and at that time, so far as the record discloses, he was a member of the brotherhood in good standing. His wife never heard from him thereafter, nor did she know where he had gone. In her search for him, she went to Baltimore City and, as we have said, went to the morgue to ascertain whether his remains had been brought there. In the examination of the records there she found a description of one whose age was given therein at thirty-five years, and although her husband was much older, she nevertheless thought from the description that it was possibly her husband ; and, after requesting certain officers of the local lodge to disinter the body, which was buried in the potter’s field, and after their refusal or failure to do so, she had it exhumed.

The body was taken from the grave under the direction or ⁶³² supervision of the officials of the morgue and, upon the arrival of the plaintiff, with her sister and Hr. Woodall, the superintendent of the morgue, at the place of its burial, the body was in a box where it oould he seen by tbem. Upon looking at tbe body, tbe plaintiff exclaimed, “My Ood, that is him.” In describing tbe body she said: “It was in a gpod condition to he buried as long as it was,” and when asked, “Was all the flesh on the face so that yon conld recognize the person ?” she answered, “The flesh was there, but was drawn and brown like a oocoanut, but tbe hair on the head was mud. It was mud from the top’ of the head to the waist, but from here (indicating) down there was no mud at all.

And the shoes were laboring shoes, like a laboring man wears, and the size of his shoes and the bunion on his feet, the hair was all full of mud except one place up here and that was just the same as if there was no mud on the head at all.” And this she said was “black with grey mixed.” It appears that those who had removed the body from the grave had, in handling it, brushed off his mustache, and it, or a great part of it, was lying on the “floor” of the box. This, Mrs. Hash said, was red like that of her husband. She also testified that the teeth of the remains, like those of Mr. Hash, were decayed, and that the shoes upon the feet had enlargements on the inner side, indicating that the wearer of them had bunions. This, it seems, was the chief reason for her believing that the remains were those of her husband, 'as he had bunions, although she does not seem to have identified the shoes or clothes as those worn by Hash.

Hpon crossi-examination she stated that the face of the remains, viewed by her, “was not recognizable; it was drawn, the skin was brown.” Mrs. Alloway, tbe sister of the plaintiff, testified that Mrs. Hash lived in Baltimore before going to' Brunswick to live. She, at that time, knew Hash, who was boarding with her sister. • Mm Hash’s former husband was then living with her. She saw; Hash quite frequently while at her sister’s in Balti ⁶³³ more, bat saw little of him after they moved to Brunswick. She knew him well enough, she said, to have recognized him had she met him on the street.

She went to the potter’s field with her sister and Mr. Woodall; upon their arrival there she found the “grave was opened and the body sitting in a box outside of the grave.” And she said she identified the body in the hox as that of Frank Nash. She was asked if the fiesh was; on the face, She; answered “not on the face, on the hands-, on the face it seems the flesh was dried away, the skin was- there so- that the skin was drawn right tight, like- over a skeleton. Q. Was it- possible by looking at his face to just identify him by his face alone? A. Not by his face alone, altogether, but with the general appearance.

Q. What peculiar things were you able to see then, about that body, which yon knew Mr. Nash had? A. Well the very prominent bunions and the sort of V-shape- that was worn in his teeth and then, seems that the mustache, the part that was there, and when it was touched, it fell — -resembled the appearance of his mustache.” The V-wo-rn shape place in the teeth she attributed to lhis use of the pipe, which, she says, Nash -so generally smoked. She also- spoke of his hair and tatoo marks;, all of which was very indefinite. She had not seen Nash for eight o-r ten years.

Mrs. Nash also- testified that, after viewing the body at the potter’s field, which she believed to- be the body of her husband, she went to Mr. Tony O. Stahlman, who was at that time, and has ever since been, the financial secretary of the local lodge of the defendant brotherhood. Mr. Stahlman was not at home and thus she failed to see- him. She then went tose» David May, chairman of the; local lodge, and told him about the body she had taken up, which she thought was her husband, giving her reasons for so thinking, and asked that the lodge disinter the body that it might be shown whether it was the remains of her husband. This she did with the view of applying for the insurance.

It was with Mr. May that she chiefly discus-sed the question of again exhuming the body ⁶³⁴ and the further1 question of the presumption of death after the lapse of seven years. In her conversations with him, she was told by him, she says, though denied by Mr. May, that “it was the law if a person was missing, that .the insurance would be paid within seven years.” Her sister, Mrs. All'oway, also testified that, after viewing the remains in the potter’s field, she, at the request of her sister, saw Mr. Pennell, recording secretary of the local lodge, and asked him what the lodge was going to do about disinterring the body Mrs. Hash had exhumed, and she was told by him that they could not do anything. Mrs. Hash also had a conversation with Mr. Pennell in March, 1918, before bringing suit on the 10th day of .September, 1918, in which •he said, “if it wasn’t proved, Mr. Hash was dead I could keep them, {the dues) up for ever and I would never get nothing.” It was because of the action of the officers of the local lodge in refusing to act upon her request to exhume the body; their belief expressed to her that the body exhumed was not that •of her husband; and the suggestion that he, if not heard from within seven years from the time of his disappearance, would be presumed dead, and that at such time the insurance would be recoverable, that she deferred further action in the matter and, as a result of such determination, she applied to and had the local lodge pay her husband’s dues that he might be kept in good standing. Pennell, in speaking of the procedure, in the event of the death of one of the members of the lodge, to recover the insurance upon his life, testified that “when we hear of a death the first .thing is the financial secretary gets in touch with where this occurred and who it is, and also our president would take action in any case of mishaps, accidents or death, and then it is reported back, and as I told you, the papers will come to* the recording secretary and we will write for the papers to file these disabilities.” That when they heard of a death they would write to the general recording secretary and treasurer of the grand lodge, at Cleveland, Ohio, to send ⁶³⁵ blanks to be filled out.

He was asked, “Let me see if I understand yon ? If yon bear of a death or a death is reported to your lodge, then you send somebody to view the remains, is that what you say? A. The president. Q. He send somebody to view the remains?

A. To- view the remains. Q. How do these notifications usually come to