Appellee, as plaintiff in the court below, filed his suit against appellant, as defendant, on the 23d day of April, 1930, to recover from the relief fund of appellant $50 per month on account of becoming totally and permanently disabled or incapacitated from performing all manual labor on account of sustaining the loss of his left hand by amputation or actual separation at or above the wrist joint, due to and caused by an injury received December 14, 1927.
History of Appellant Order and the Nature and Result of the Suit.
Appellant is a voluntary association, primarily a labor organization, and was created in 1873. It is composed of a Grand Lodge and about 1,000 subordinate lodges scattered throughout the United States, with a total membership of about 100,000. The appellant organization has a representative form of government, divided into local lodges with ritualistic form of work, and is not operated for profit. Its objects are to serve generally the interests and welfare of its members, and to provide a measure of protection against the disasters that overtake them in their hazardous callings. There is included protection by way of life insurance, indemnity on account of loss of a member by amputation; and since 1926 a relief department has been established for the benefit of members wholly disabled by disease or injury and in case of superannuation. Since the organization of this department in 1926, 143 payments have been made on account of loss of members by amputation, and about 30,640 claims under the total disability provisions. Its rules providing for total disability benefits are as follows: "A member of the Relief Department in good standing upon the books of the Grand Lodge becoming totally and permanently disabled or incapacitated from performing all manual labor on account of Bright's disease of the kidneys; uncompensated valvular disease of the heart; progressive pernicious anemia; permanent paralysis of either extremity, locomotor ataxia; total deafness in both ears; arthritis deformans; diabetes, cancer, or sustaining the loss of a hand by amputation or actual separation at or above the wrist joint, or the loss of a foot by amputation or actual separation at or above the ankle joint, of becoming totally and permanently blind in one or both eyes, shall be entitled to receive from the Relief Fund of the Organization fifty dollars ($50.00) per month. Payments of this amount to be continued so long as the member continues to be totally and permanently disabled from performing all manual labor."
In 1914, appellee, engaging in railroad work having to do with the operation of locomotives, became a member of the appellant organization, and such membership thereafter continued. He procured insurance against loss of a specific member by amputation, and also became a member of the relief department and was entitled to disability benefits coming within the coverage of its provisions. On December 14, 1927, he suffered an injury resulting in the loss of his left arm by amputation at or near the shoulder joint, and on account of which the appellant paid him, under his specific loss certificate, the sum of $3,000. On April 23, 1930, he filed this suit, seeking a recovery under the total disability provisions above set forth. He alleged his membership with appellant and the payment by him of all dues necessary to maintain him in good standing. He alleged that in consequence of the loss of his arm, he became totally and permanently disabled from performing any and all character of manual labor. He alleged the making of demand for payment and proceeding otherwise in conformity with the laws of the Order, and the rejection of his claim by its authorized officers. Recovery at the rate of $50 per month from the date of the accident was prayed for, and also that the judgment condemn appellant to pay him $50 per month as long as he lived. Appellant answered by a general demurrer and general denial, and pleaded the payment of the specific indemnity for the loss of the arm. The jury, by their verdict, found that appellee's injury had resulted in his total incapacity to do all manual labor, and that said incapacity was permanent. On this verdict, judgment for appellee was rendered on the 23d day of March, A.D. 1931, for $1,966.65, from which appellant duly prosecuted this appeal. Under the view we take of this case, we find it only necessary, in order to dispose of this appeal, to herein discuss appellant's first proposition, viz.: "Appellee, being entitled to recover under the allegations of his petition and under the provisions of the laws of his order only in case of his being totally disabled by the loss of his arm from performing any and all labor, and his own evidence definitely negativing such incapacity, he was not entitled to recover, and the requested peremptory instruction to the jury to return a verdict for the defendant should have been given." And second proposition, viz.: "Even though the evidence might support a *Page 225 finding that performance of appellee's work as truck driver and operator was attended by some pain or discomfort, as the result of the loss of his arm, yet he would not be entitled to recover under appellee's laws, which awarded him relief only in case of his being totally incapacitated, and the requested peremptory instructions to the jury to find a verdict for the defendant should have been given." The following facts were indisputably established by the evidence adduced by the testimony of appellee and his witnesses, viz.: That the stub of appellee's arm having healed 92 days after the injury, he engaged in the trucking business; that he invited the patronage of the public generally; that he established a location where he might be found and where there was a telephone available for his service; that he was employed with his truck by the city of Denison, by the Kraft-Phoenix Cheese Company, by V. C. Hardy, another truck line operator, and by contract for the handling of all the freight in and out of Denison over the Missouri, Kansas Texas line of railroads in the store to store or pick up service; that sometimes he drove the truck and sometimes another drove it, that he drove it whenever occasion demanded; it was just a question of who got under the wheel, if he got under the wheel first, he would drive, and if the other fellow got under the wheel first, he would drive. He further testified that he drove the truck home at night and back to work in the morning; that he drove it between Denison and Dallas. The evidence further established, without conflict in its terms, that appellee was regularly engaged in the trucking business, fully qualified to carry on alone an essential part of it, driving the truck, and loading same with small packages; that he hauled for the public generally, and for concerns under regular contract; furthermore, no testimony was introduced from any source showing an occasion where the services of appellee and his truck were called for that he found himself unable to give same the needed attention. That from the date appellee was injured, December 14, 1927, to the date his wound had completely healed over, covered a period of 92 days during which he was totally disabled from performing all manual labor. Appellant promptly paid appellee the sum, of $3,000, to which he was entitled under the provisions of his specific loss certificate. The provision of appellant organization providing for total disability benefits applicable to the claim of appellee, asserted thereunder, eliminating all other grounds for total disability benefits, reads as follows: "A member of the Relief Department in good standing upon the books of the Grand Lodge becoming totally and permanently disabled or incapacitated from performing all manual labor on account of * * * sustaining the loss of a hand by amputation or actual separation at or above the wrist joint, * * * shall be entitled to receive from the Relief Fund of the organization Fifty dollars ($50.00) per month. Payments of this mount to be continued so long as the member continues to be totally and permanently disabled from performing all manual labor."
Reversed and rendered. *Page 227