ALBERT V. ORDER OF CHOSEN FRIENDS.
721
difference between'remitting the interest and remitting such part of the verdict as would leave enough to amount, with interest, to what the verdict now is. Nothing would be gained by requiring the remittitur already entered to be changed. Upon these considerations a judgment on the verdict for $5,000 damages only appears to be th{: proper and only proper verdict to be entered. This condusion makes consideration of whether the plaintiff should be allowed to take judgment on the verdict and remittitur, as a matter of discretion, unnecessary; That the court has that power is unquestioned. Thompson v; Butler, g5 U. S. 694; Inb'Urance Co. v. Nichols, 109 U. S. 232, 3 Sup. Ct. Hep. 120;13ank v. Eedick, 110 U. S. 224, 3 Sup. Ct. Rep. 640; !loyers v. Bowe:t'l/l,an, 21 Fed. Rep. 284. 'There is, however, one consideration which would fa\'or granting that leave. This statute respecting interest was not called to the attention of the court or jury upon the trial, and the case was mllJmitted to the jury as if the amount of the verdict would be all that could be recovered. They might not have found the damages at the time 'Jf the death to be $5,000, or any more than enough to amGunt to that sum now. ,The rlf/niUitur may have left as large a verdict as the ji.lty would have given. In Darrel's Case, YearBook 13 Hen. VII. fol. 16, 17, ill a writ of trespass, the plaintiff laid his damages at 20 On not guilty being pleaded the jury found the damages and costs of suit jointly to be 22 marks, thereupon, BRIAN, .T., said: "Semble que verdit est bon pur 20 markes Ie remnant voide." The ad damnum need not be large enough to cover both' damages and costs, but in that case the court could not tell how much ofthe 22 marks was for damages, nor how much was for costs; therefore the judgment was for but 20 marks. Case, 10 Coke, 117b. Here the statute gives the interest as a part of the damages, but the jury may have considered the same interest as a part of the damages found by the verdict. Motion granted, and let judgment be entered on the verdict and remittitur for $5,000 damages, only.
«pur
(OVr/J'Uit Oourt, lJ. Kentucky. August 23, 1887.)
1.
INSURANCE-MuTUAL BENEFITS-PERMANENT DISABILITY.
The .constitution of a relief fund association provided that a member "permanently disabled from following his or her tisual or other occupation " was entitled to a benefit; and in another section defined such disability liS one which should "permanently prevent the member from following any occupation whereby he or she clln obtain a livelihood." Held, that the words "or other occupation," in the first-mentioned section, could not be held to mean "or other of the same kind:" and the definition in the latter section was con· clusive against one who, disabled from his own profession, had been working at another totally dissimilar one. '.' The laws of a relief fund association nrovided that on notice of the disabil. ity of a member a board of physicians should examine him, lind report to the
2.
SAME-:-PROOF OF G'LAIM.
v.34F.no.9-46
122
FEDERAL REPORTER·
This sectiopJeaves no room for the rule of eju8dem genem to be applied. The langUl,tge.is explicit that the disabling sickness shall render the mem-
ALBERT ".ORDER 01<' ,9HOSE.N FRIENDS.
723
helpfess, of permanently preventing him "from followmg any occupation whereby he or she, can obtain a livelihood." See Sa1;eland v. Fidelity 30 N. W. Rep. 237. The language of the article of association, which states the principal objects of the association, or that of the cous,titution, which declares that one of the objects of eS7 tablishing a, relief fund to be to relieve a member when by reason of disease or accident he "becomes permanently disabled from following his or other occupation," cannot help the plaintiff. Both her usual or parties are bound by the certificate of membership, which is the contract as to the relief to be givl}Jn, and that refers to the laws governing the relief fund as the controlling rule upon the subject now under consideraparagraph of the answer shoul<1 for tion. The demurrer to the the reason given, be overruled. The demurrer to the third paragraph of answer presents a novel question. That paragraph proceeds upon the theory that the plaintiff cannot recover if the subprdinate council, of which he is a member, does not approve his proofs of the disability. I1'sets out affirmatively as a complete defense that the subordinate council of which he is a member has rejected his claim. The question is not whether the plaintiff has sufficiently excused himself from having the approval of this counc.;il, as required by section 8, and made the proper atlegations in that regard, but whether, this council havin& rejeCted his claim, that is the end of it,.except by an appeal ,to a superior council of the order. The relief fund laws direct that,upon proper notice of a disability being given, the supreme councilor shall order a board of three physicians, whose duty it shall be to make a careful examination of the member's condition, and report as to the character and permanency of the disability. If this re" port'lshows a disability of an unquestionable total and permanently disabling character, the supreme councilor, supreme recorder; and supreme medical examiner may approve the same, and order tho benefit paid." Section 7 of these laws provides that in case of disability for accident, this board of ppysicians may be dispensed with. Section 8 of these laws declares that l'a11 proofs for death or disability benetitsshall be approved by the subordinate council to which the claim belongs, while assembled in regular se!ision, and such approval shall be attested by the chief councilor and secretary with the seal of the council. A medical examiner shall also approve and attest such claims, all of which shall be done before a claim is forwarded to the supreme recorder." The fourth section provides that upon the receipt and approval of satisfactory proofs of the disability of a member, as hereinafter provided' for, "he shall be entitled to a benefit of not exceeding one-halfof the relief fund certiticate held by h11l1 or her. These provisions are seemingly somewhat inconsistent. The, use of the words "not exceeding" one-half of the amount of the re· lief fund certificate held by him, would indicate that there was '31thet a sliding scale upon which the benefits were to be regulated, or that, some one had a discretiOn in the matter. The disability benefits are, as 1 un. ,derstand iUo be, one-half of the amount of the relief fund,certificaie held by the in, t?e case mentioned in section is)
724 therefore, uniformity in benefits as well as assessments; and neither a subordinate council, or other body or person in the order, can, in their diEcretion, scale a benefit. We have seen that the right to allow a disability claim is with the supreme councilor, supreme recorder, and supreme medical examiner. What, then, is the meaning of the provision of section 8, which requires "all proofs for death or disability benefits shall be approved by the subordinate council to which the c1aiman.t beWe think this provision is directory as to the mode of preparing proClfs for those who are to act upon the claim, and does not give the subordinate council the right to reject the claim itself. I see nothing; in the constitution or laws ofthis order which gives to subordinate councils the right to reject a claim for either a death or disability benefit. Such :l right will never be presumed, but must be given in the clearest and most' explicit terms. Neither do I find anything which makes thejudgment ofa supreme councilor, supreme recorder, and supreme medical examiner upon these benefits final, so as to preclude a claimant from appealing to the courts for redress, if he be otherwise entitled to it. The demurrer to the third paragraph should be sustained.
AULTMAN
et al.
'11. MCCONNELL
et ale
(Oircuit Oourt, 8. D. iowa,
w: D.
Apri120,1888.)
INStrnANCE-AsSIGNMENT OF POLlCY.
When the owner'of an insurance policy, after loss. places the same In the hands of an attorney for collection, with instructions to apply the in payment of his debt to a third person, this does not constitute an assign" ment of the policy to such third person.
SAME-VALIDITY-CHANGE OF POSSESSION-RECOlIDING.
The written assignment of a policy, made by the holder after loss, noticlil of such assignment being served upon the company, and the original holder of the policy retaining possession, is valid as against a subsequent garnish· ment, and need not be recorded as required by Code Iowa, § 1923·.in case of a saie or mortgage of personal pl'Opert,y when the vendor or mortgagor retains possession.
At Law. Stone &: Sim8, for 1JlainHff. Sapp &: PUBey, for SHIRAS, J. In 1886, James McConnell was the owner olastore building in the town ,If Harlan, Iowa, upon which he held a policy of iusur;' in the Pennsylvania Fire Insurance Company, for the sum of $700. Joseph G. Peirce held a mortgage on the property as security for a debt due him from McConnell.. In August, 1886, the premises were destroyed by fire, and on the 11th of that month McConnell executed a written as'signment of the policy to Peirce, as additional security tohhJl; This was not indorsed on the policy, .which waS at the date of the