Petitions for Rehearing.
(171 Pae. 1049.)
Messrs. Dolph, Mallory, Simon S Gearin and Mr. Hall S. Lush, for respondent’s petition.
Mr. Virgil A. Grum, for appellant’s petition.
Department 2.
McCAMANT, J.13. Both parties have petitioned for a rehearing. Their petitions challenge practically every proposition announced in the former opinion. Plaintiff contends that we have given defendant the benefit of a defense not pleaded. The answer sets up the election of defendant to accept the benefits of Chapter 112 of the Laws of 1913; it is charged that' plaintiff filed her claim to compensation under this act March 3, 1915; that the State Treasurer on March 5, 1915, set aside for plaintiff’s benefit a sum of money and
*244‘ ‘ that ever since the 15th day of March, 1915, the plaintiff has been receiving payments of $30 per month from the moneys set aside for her, and since the 31st day of May, 1915, has been receiving the additional snm of $6 per month on behalf of said child.”
The answer also pleads the stipulations of the plan on which defendant relies. We think that the allegations are sufficient to entitle defendant to the credits allowed it in the former opinion.
14. Plaintiff quarrels with the rule announced for the construction of the plan. Authorities are cited to the effect that a contract is to be most strongly construed against the party drawing it. This principle, as applied to ordinary commercial contracts, is well established, but it is inapplicable to the instrument which is the basis of this litigation. Defendant was under no legal obligation to provide this protection for its employees. It is not suggested that the compensation paid the deceased was diminished by a dollar when the plan was promulgated. The entire fund was created by defendant. We agree with plaintiff’s counsel in his claim that the promulgation of the plan inured to the advantage of defendant. Broad-gauge, generous conduct is usually well advised, even from a selfish standpoint. It is contrary to fair dealing to enlarge by construction the burdens assumed by an employer of labor who voluntarily provides for such a system of pensions and benefits. The duty of the court is to ascertain the intent of the parties; that of the defendant in announcing the plan and that of the deceased in remaining in defendant’s employ after the plan.was put in effect. This intent is to be gathered from a fair and impartial interpretation of the language used.
It is true that prior to the promulgation of defendant’s plan the states of Ohio and Washington had *245adopted statutes similar to Chapter 112 of the Laws of Oregon for the year 1913. It is nevertheless apparent that the author of the plan was familiar only with industrial accident legislation providing for payments hy the employer directly to the employee.
The other contentions of plaintiff have been duly considered, but it would unnecessarily prolong this opinion to discuss them.
Defendant contends that we are in error in holding that the burden of proof devolved on defendant to show that plaintiff’s benefit under the Act of 1913 was greater than the benefit provided by the plan. Defendant cites Mercer v. Germania Ins. Co., post, p. 410,171 Pac. 412. In that case plaintiff sued on a policy of fire insurance written in favor of her husband. The policy provided that it should be void if the interest of the insured were anything other than sole and unconditional ownership. Plaintiff contended that defendant was estopped to rely on the above provision in the policy, but her estoppel was pleaded only in the reply. It, was held that she could not recover. The contract on which she relied was inconsistent on its face with her right of recovery.
In the case at bar there is nothing in the contract which on its face precludes a recovery by plaintiff. There is no presumption that defendant had accepted the provisions of Chapter 112 of the Laws of 1913, nor is such acceptance alleged in the complaint. Notwithstanding Section 32 of Article IX of the plan, plaintiff was entitled prima facie to recover. Her rights under the act of 1913 were a defense which it devolved on defendant to allege and prove. These conclusions are supported by the opinion of Mr. Justice Moore in Olds v. Olds, ante, p. 209 (171 Pac. 1046), decided April 2, *2461918. Plaintiff’s complaint is sufficient and her proof corresponds with her allegations.
Defendant relies on Clark v. New England Tel. & Tel. Co. (Mass.), 118 N. E. 348. This case is based on a plan similar to that with which we are concerned. The Massachusetts court holds that where the facts are in dispute the finding of the committee thereon is conclusive. In the instant case the facts are not in dispute. The answer admits the facts on which plaintiff’s right to recover is based. The reasoning of the Massachusetts court is in entire harmony with our former opinion and the rule of' construction applied conforms to the views above expressed.
15. Defendant calls our attention to the fact that under our industrial accident statute, Laws of 1913, page 199, in case plaintiff marries she is entitled to receive the equivalent of ten monthly allowances, or $300. We think that this sum as well as the moneys which plaintiff has already received should be deducted from the sum of $2,700 provided by the plan. Plaintiff admits in her petition that the sum of $30 a month has been paid her since March 15,1915. Plaintiff asks that the case be remanded with directions to enter the judgment to which she is entitled.
The former opinion will therefore be modified. The judgment will be reversed and the Circuit Court will be directed to enter a judgment in favor of plaintiff for $1,320. Former Opinion Modified.
McBride, C. J., and Moore and Bean, JJ., concur.