
    Shipe v. The Norfolk & Western Ry. Co.
    
      (Decided October 28, 1935.)
    
      Mr. Wilbur E. Benoy and Mr. U. Grant Sain, for plaintiff in error.
    
      Messrs. Pomerene & Boulger, for defendant in error.
   Barnes, P. J.

The above entitled cause is now being determined on proceedings in error from the rulings, orders, findings and judgment of the Court of Common Pleas of Franklin county, Ohio.

The parties appear in the same order in this court as they did in the court below. Very able and comprehensive briefs have been filed by counsel representing the respective parties.

The action below was brought by Harry J. Shipe against the defendant Norfolk & Western Railway Company for the recovery of benefits growing out of an accident to plaintiff, sustained in the course of his employment, such benefits arising by reason of membership in a relief and pension department maintained by the railroad company for the benefit of its employees. The relief department organized and maintained by defendant railway was a voluntary organization, membership therein being obtained by signed application in prescribed form, through which the member agreed to subscribe to and be controlled by the existing rules and regulations or any amendments thereto. In the application special reference was made to Rule 62. The employees were not obligated to become members of this relief association, but, as. above stated, the same was purely voluntary. The fund for relief was obtained through contributions of the members by fixed sums deducted from their wages each pay day. Any deficiency was made up by the railway company, and it also bore the expense of administration. The president of the railway company was ex officio president of the advisory committee.

The advisory committee consisted of ten members, five of whom were selected by the board of directors of the railway company. The other five were chosen annually by employees from five different districts.

Columbus, where the plaintiff lived, and where the accident occurred, was in District No. 4.

The active managing officer of the relief department was called superintendent, and, as such, he was the secretary of the advisory committee.

The plaintiff, Harry Shipe, became a member of the relief and pension department on the 2nd day of January, 1923, and was such member at the time of his accident and injury on the 30th day of August, 1925. Plaintiff received relief benefits from the date of his accident until June 19, 1926, at which time the medical examiner for the relief department declared plaintiff able to resume employment and therefore not entitled to further benefits.

Section 37 of the regulations governing the administration of said relief fund provides, in part, as follows:

“In any case of disability classed as either accident or sickness, benefits will cease when the member shall be declared by the Medical Examiner able to return to his regular duty, or able to earn a livelihood in an employment suited to his capacity * *

Under and by virtue of Section 62 of the regulations appeal was provided from the decision of the medical examiner. The pertinent portions of this Rule 62 read as follows:

“But if a decision in any case is given a member by a Medical Examiner or the Medical Director, an appeal therefrom shall be submitted within sixty days of the time of such decision to the determination of the Superintendent of the Relief and Pension Department, whose decision, however, shall be subject to the right of appeal to the Advisory Committee within thirty days after notice of his decision to the parties interested.”

“When an appeal is taken to the Advisory Committee, it shall be heard by said Committee without further notice at the next stated meeting, or at such future meeting or time as they may designate, upon evidence and argument submitted in writing, and shall be determined by a majority vote of the members present at the meeting, and the decision arrived at thereon by the Advisory Committee shall be final and conclusive upon all parties without exception or appeal.” (Italics ours.)

The printed regulations introduced in evidence, containing sixty-three sections under the relief provisions and thirteen sections under the pension division, in all forty-two pages, with an additional six pages of index, nowhere therein designate an address or situs of the department. Other than stipulated in the above-quoted sections of the regulations no form of appeal, or place where, or with whom same should be filed, is prescribed. Under such a situation it must necessarily follow, and the courts have determined, that the appeal shall be characterized as informal.

Following the action of the medical examiner declaring plaintiff able to work, and thereby terminating further benefits, the plaintiff, Shipe, within the sixty days prescribed for appeal, transmitted an undated letter to J. C. Snavely, superintendent of the relief department, advising him of the action of the medical examiner, Dr. .Kramer, and asking that benefits be restored and continued. The letter also advised that he was not able to work. This letter was received by Mr. Snavely on July 6, 1926, and we think may properly be considered a compliance with Section 62 of the regulations providing for appeal from the decision of the medical examiner to the superintendent.

On July 6, 1926, the superintendent transmitted a communication to Mr. Shipe, received in due course by Mr. Shipe, of which the following is a copy:

“Dear Sir: I have just received your letter, without date, advising that Dr. Kramer, Medical Examiner at Columbus, closed your disability case out as able to work June 19th, but that you maintain you are not yet able to work, that you can not get around without a cane and can only walk a short distance at a time, nor can you sit long in one position.

“I can only be governed in your case by the opinions of our Examiner, and Company Surgeon Dr. Teaehnor, both of whom believe that you are able to do light work, which conclusion they arrived at from their physical examination of you. Please understand that our Regulations do not contemplate or provide that an employe member of the Relief Fund who has been disabled from any cause must be absolutely able to return to his regular duty before benefits of Relief Fund cease, but rather that so soon as a man is able to earn a livelihood in an employment suited to his capacity his benefits shall cease when the Medical Examiner so declares. It would appear that your case has been handled in this manner. But if you can furnish evidence and convince Dr. Kramer and Mr. Teachnor that you are not able to do any sort of work whatsoever, I am sure Dr. Kramer will be glad to restore your benefits. Surely you can not complain of the treatment that has been given you by reason of your membership in our Belief Fund.

“Yours very truly,

“J. C. Snavely,

‘ ‘ Superintendent. ’ ’

On July 15, following, Mr. Shipe addressed a letter to Mr. J. F. "Wilkinson, Advisory Committee Dist. 4, of which the following is an exact copy:

“Cols. O. July 15, 1926. Mr. J. F. Wilkinson, Advisory Committee Dit. 4. Dear Sir:' While in the performance of my duty as yard brakeman in Columbus yard, was injured Aug. 30, 1925. Your Medical Examiner, Dr. Kramer, of Cols, closed my disability case out June 19, 1926, as able to work and tendered me .an O. K. card which I refused. Now I wish to state that I am unable to do work of any kind. I can not get around without the use of a cane, and can only walk a short distance at a time, nor can I sit long in one position. As a member of the Belief I don’t feel that I have been given a fair deal. I am asking you to take this matter up and have my relief restored. Thanking you for an early reply. Yours Resp. H. J. Shipe, 934 Ebner St. Cols. O.”

It is now claimed that this communication of July 15 constituted an appeal to the advisory committee, as required under Buie 62 heretofore quoted.

It is -a controversial question as to whether or not this letter constituted an appeal to the advisory committee, as provided under Section 62 of the Bules and Regulations. It is the contention of the defendant railway company that it was nothing more than a personal appeal to Mr. Wilkinson, who happened to be the advisory committeeman from plaintiff’s district, to use his personal efforts to have his relief restored. It evidently was so accepted by Mr. Wilkinson, for the reason that it does not appear that it ever came to the attention of the advisory board, or the superintendent, the secretary of the board, until December 17, 1929, when Mr. Wilkinson transmitted his entire file to the superintendent, which contained therein the letter of July 15.

So far as the record discloses no further action was taken by the plaintiff, Mr. Shipe, in having a hearing on the appeal, although Rule 62 provides that when an appeal is taken to the advisory committee it shall be heard without further notice at the next stated meeting, or at such future meeting or time as they may designate, upon evidence and argument submitted in writing.

Nothing further was done until November 26, 1929, when George H. Jackson, of the law firm of Cowan, Adams, Adams & Jackson, addressed the relief and pension department of the railway at Norfolk, Virginia, calling attention to Mr. Shipe’s injuries of August 30, 1926, for which $493.50 had been paid, and stating that under the terms of the liability contract there remained about $942.75, as of November 22, 1929. In this letter no reference is made to any pending appeal. This communication was received by Mr. Snavely, superintendent, and on December 4, following, he replied to Mr. Jackson’s letter, stating in substance that Mr. Shipe was declared able to work by the medical examiner on June 19, 1926, and since no appeal had been taken from that decision the action of the medical examiner was final. Attention was called to Regulation 62.

On December 11, 1929, Mr. Jackson, an attorney for plaintiff Shipe, transmitted a letter to the advisory committee of the relief and pension department of the Norfolk & Western Railway Company, Roanoke, Virginia, stating that the letter, as a matter of form, is an appeal from the finding of the superintendent, Mr. Snavely, denying the claim in his letter of December 4,1929. The communication also stated that additional evidence concerning the case was enclosed.

This letter was received by Mr. Snavely, superintendent, on December 12, and on December 16 following, as secretary of the advisory committee, he acknowledged receipt of letter of the 11th instant, further stating that the papers will be put before the advisory committee at its next meeting on the second Tuesday in March, 1930, and that the result will be communicated. The last paragraph of the letter reads as follows:

“My acknowledgment of the papers and my placing them before the Committee as a matter of course will not be taken as waiver of any of the provisions of the governing Departmental Regulation 62 which as you have been informed by my letter of the 4th instant' limits time for appeal.”

In chronological order the next communication was a letter from Mr. Snavely, secretary of the advisory committee, under date of March 14, to Mr. Jackson, the body of which letter is as follows:

“I am instructed by the Advisory Committee of the Relief Division of the Relief and Pension Department of this Company to inform you that at a meeting on the 11th instant, the action of the Superintendent in affirming the decision of the Medical Examiner was approved by the Committee.”

On April 2, 1930, plaintiff filed a petition. The case was finally tried on the second amended petition of the plaintiff, answer of defendant thereto, and plaintiff’s amended reply to defendant’s answer.

The second amended petition does not make the claim that the appeal to the advisory committee was made through the letter addressed to Mr. J. F. Wilkinson, advisory committee, District 4, under date of July 15, 1926; hut under plaintiff’s amended reply to defendant’s answer the claim is therein made that the letter to Mr. Wilkinson constituted the appeal. The general allegation in the second amended petition of full compliance of all conditions, etc., renders the petition all inclusive.

It was the determination of the trial court that the action of the advisory committee affirming the decision of the medical examiner, as shown by the letter of March 14, 1930, precludes the defendant from asserting that the appeal was not properly perfected. In support of its view the court cites the case of B. & O. Rd. Co. v. Stankard, 56 Ohio St., 224, 46 N. E., 577, 49 L. R. A., 381, 60 Am. St. Rep., 745, and quotes from the opinion on page 230:

“The reference of the claim to the advisory committee and its action thereon and notice of such action to the parents, was the equivalent, and took the place of an appeal, so that the case stands as if an appeal had been taken and the claim rejected by the advisory committee.”

From a careful reading of the Stankard case, supra, and the facts therein involved, we are not able to follow the trial court in its reasoning, but, while not free from doubt, we do think this ruling of the court can be sustained upon another theory.

If the letter of July 15, 1926, to Mr. J. F. Wilkinson, advisory committee, District 4, can be accepted as an appeal to the advisory committee, it then will clearly appear that no action was taken thereon by the advisory committee until March 14, 1930. In the meantime the appeal would remain pending, and action of the advisory committee would be the condition precedent to the bringing of an action by the plaintiff. In view of the fact that the rules and regulations do not make any provision for place, or state with what officer appeal shall be filed, or the form in which it should be presented, it necessarily follows that in contemplation of the parties the appeal is very informal.

One trained in the law would probably conclude that the secretary of the board would be the proper individual with whom to file the appeal. In the absence of any direct provision in the regulations a layman would probably think that the advisory committeeman in his own district would be proper, particularly in view of the fact that the superintendent, who was also secretary of the board, had ruled against him.

In the court below the cause was submitted to the jury under instructions of the court, and a verdict was returned in favor of the plaintiff for the full amount prayed for in the petition. Motion for new trial was filed within the statutory time, and at the same time counsel for defendant filed motion for judgment. At the close of plaintiff’s testimony counsel had made request for a directed verdict, and this was renewed at the close of all the testimony.

The legal question involved in the motion for judgment after verdict was the identical question preserved throughout the record. The trial court very courageously, after hearing and mature deliberation, reversed his position and entered judgment on the pleadings and uncontradicted evidence. This is the final order from which the plaintiff now prosecutes error in this court.

The court’s determination in entering judgment in favor of the defendant was based on the fact that the regulations to which the plaintiff had subscribed in his application for membership contained the provision that the determination of the medical examiner that he was able to work on June 19, 1926, was a final determination of a material fact involved, save and except the right of appeal, as provided in Regulation 62, and also that the appeal, being denied in the first instance by the superintendent, and later by the advisory committee, there was invoked the following, as contained in the last few lines of the last paragraph of Rule 62, to wit:

“And the decision arrived at thereon by the Advisory Committee shall be final and conclusive on all parties without exception or appeal.”

We think the rule of law is well established in this state, as well as in other jurisdictions, that parties may agree in advance to refer questions of fact to a fact-finding body, and its determination will be final unless impeached by fraud or manifest mistake. This is the exact language stated by Chief Justice Burket in the case of B. & O. Rd. Co. v. Stankard, supra, at page 232:

“Such fact when ascertained and fixed by the person, and in the manner provided by the terms of the contract, is conclusive between the parties, in the absence of fraud or manifest mistake; but the parties are at liberty, after so fixing such fact to go into court and litigate such differences as may still exist between them. In such contracts, the person selected to determine the particular fact, becomes the agent of both parties for that purpose, and what is done by such agent is, in legal effect, done by the parties themselves, and therefore there is no hardship in holding them conclusively bound thereby, in the absence of fraud or mistake.”

The following cases are cited as examples of such contracts: Easton v. Pa. & Ohio Canal Co., 13 Ohio, 79; Mansfield & Sandusky City Rd. Co. v. John P. Veeder & Co., 17 Ohio, 385; Mundy v. Louisville & N. Rd. Co., 67 F., 633, 14 C. C. A., 583; Kane v. Stone Co., 39 Ohio St., 1; North Lebanon Rd. Co. v. McGrann, 33 Pa., 530, 75 Am. Dec., 624; Faunce v. Burke & Gonder, 16 Pa., 469, 55 Am. Dec., 519; Monongahela Navigation Co. v. Fenlon, 4 Watts & Sergeant, 205; Hamilton v. Liverpool, London & Globe Ins. Co., 136 U. S., 242, 34 L. Ed., 419, 10 S. Ct., 945; 33 Central Law Journal, 168.

On page 233, speaking on the same subject, Judge Burket makes this further observation:

“Such contracts are in their nature only applicable to cases wherein it becomes necessary to fix some facts, leaving the question of law to be settled by the courts upon proper proceedings. The ultimate question to be determined — the liability or non-liability of the parties — must be left to the courts. The construction of a written contract is a question of law for the court, and a provision in the contract that the construction of such contract, or the meaning of rules or regulations, shall be finally determined by some designated person, is void, because the court can not be robbed of its jurisdiction to finally determine such questions. In insurance and other like cases, where the ultimate question is the payment of a certain sum of money, certain facts may be fixed by a person selected for that purpose in the contract, but the ultimate question as to whether the money shall be paid or not, may be litigated in the courts, and a stipulation to the contrary is void.”

Counsel for the plaintiff urge very earnestly and persuasively that the syllabus and other excerpts from the opinion support and demand a reversal of the trial court. We take from the brief of counsel for plaintiff the following recent decision of the Supreme Court, which recites a principle very often announced by the courts of last resort.

“The syllabus of a decision of the Supreme Court of Ohio states the law of Ohio, but such pronouncement must be interpreted with reference to the facts upon which it is predicated and the questions presented to and considered by the Court.” Williamson Heater Co. v. Radich, 128 Ohio St., 124, 190 N. E., 403.

Applying this case to the statement in the Stankard case, supra, we very easily determine that no facts were involved of a character which the law would permit to be determined by the superintendent of the relief department or by the advisory committee on appeal.

Rule 11 is set out in full on page 229 of the opinion and is materially different from Rule 62 in the instant ease. No provision is contained therein providing for the determination of the fact of sickness, injuries through accident, recovery and ability to work, and so forth. There is provision for all questions or controversies of whatsoever character arising in any manner or between any parties or persons in connection with the relief department or the operation thereof, which may be broad enough to include factual questions permitted to be determined under regulations. However, the questions of sickness, its continuation, recovery, or any other question of like character, are not involved in this reported case.

Rule 11 attempted to confer on the superintendent, with right of appeal to the advisory committee, the fixed and final authority to determine the construction of the language or meaning of the regulations, or of any writing, decision, construction or act in connection therewith, and this, the courts say, may not be done; but this was practically the entire applicable provision of Rule 11 under consideration by the Supreme Court.

The statement of the case discloses that Michael Stankard, an unmarried man at the time of his death, a member of the relief department, became sick on the 27th day of January, 1890, and continued sick until his death on the 13th of November, 1890, having received no sick benefits during his sickness. The parents of Michael filed the action seeking to recover the death benefits of $1000 and $484 sick benefits. The petition made the proper averments of performance of conditions. The answer of the railroad company made specific denial that he was in the employ of the railroad company at the time of Ms sickness or his death, and further denied that he properly notified the railroad company of his sickness. Rule 11 was also set up as a complete bar to plaintiff’s action.

It will be observed that the issue was raised as to the performance of the conditions precedent of plaintiff’s decedent.

The first paragraph of the opinion of Judge Burket is very enlightening:

The questions as to whether or not Michael Stankard was in the employ of the company at the commencement, and during the time of his sickness, and at his death, and whether or not the company was properly notified of his sickness, are questions of fact submitted to the jury upon testimony competent in character, meager and unsatisfactory in substance, but from which a jury might find, as this jury did, in favor of the plaintiff below.”

This leads us to inquire as to what was the real question involved from which the court evolved its syllabus.

We find Judge Burket making the following statement in the second paragraph of his opinion:

“The only matter in the case deemed worthy of report, is as to the validity and scope of rule eleven.”

Then is set out in full Rule 11, to which we have heretofore referred.

One of the questions involved was whether or not the parents had perfected their appeal. It was the holding of the court that it having been shown as a fact that the claim had been presented'to the superintendent of the relief department, who, instead of acting on it referred it to the committee, and the committee thereupon acted thereon, would be the equivalent of and took the place of an appeal, and therefore the ease would stand as though the appeal had been taken and the claim rejected by the advisory committee. The advisory committee declined payment and the reason therefor is set forth as follows:

“Because of his failure to report in accordance with the regulations.”

This seemed to he the sole controverted question of' fact, and as stated by Judge Burket in the first paragraph of the opinion, was determined by the jury in favor of the claimants.

Considering the syllabus in the light of the statement and opinion, through which we ascertain the .nature of the controversy, and by giving application to the principle that the syllabus must be interpreted with reference to the facts upon which it is predicated (Williamson Heater Co. case, supra), we are unable to conclude that the Stankard case, supra, in any way supports the contention of counsel for plaintiff.

Counsel for defendant cite the case of Myers v. Jenkins, Admr., 63 Ohio St., 101, 57 N. E., 1089, 81 Am. St. Rep., 613. This case differs very substantially in its facts from the instant case. Therein the issue is raised and determined that the plaintiff could not appeal to the courts until he had exhausted his remedy for appeal, as provided in the by-laws of the lodge. Had we not determined that the appeal was perfected in the instant case the reported case might be determinative of that question.

On the question of factual finding, Judge Burket, at page 121, makes the following observation:

“As pointed out in the case of B. & O. R. R. Co. v. Stankard, supra, contracts may provide for ascertaining and fixing certain matters in a particular manner, but the ultimate adjudication of the questions of law must remain in the courts, unless waived after the rights have accrued, or the obligations have been incurred. Jurisdiction can not be conferred upon court's by contract, and it cannot be taken away by contract; but in certain cases a party may be estopped by his contract from invoking the jurisdiction and aid of a court in his behalf.”

If we understand the contention of counsel for plaintiff correctly, he is in accord with the rule of law that parties may in advance agree that the determination of facts may be submitted to and determined by a fact-finding body, and may also agree that such finding will be final. The contention, as we understand it, is that the determination by the medical examiner, concurred in by the superintendent, and later by the advisory committee, that the plaintiff was able to work, is a mixed question of law and fact and therefore is controlled by the syllabus in the Stankard case, supra.

We have read the well considered opinion of the trial court on this question and concur in his opinion on this branch of the case.

A very recent decision by Judge King, of the Court of Common Pleas of Franklin county, reported in Boling v. Norfolk & Western Ry. Co., 30 N. P. (N. S.), 47, considered the identical question under very similar facts. This opinion discloses much research and careful thought. His conclusions were the same as those of the trial court in the instant case.

It can serve no good purpose to make special reference to many other cases cited by counsel on both sides.

We find nothing in any of them that is not reconcilable with our announced theory of the law.

It is our conclusion that the determination of the question as to whether or not the plaintiff had sufficiently recovered to be able to work was a question of fact, and that the provisions of the by-laws prescribing a fact-finding body on this question are authorized under the law. Penn Co., Trustee, v. Reager, Admr., 152 Ky., 824, 154 S. W., 412; Reager’s Admx. v. Penn Co., Trustee, 169 Ky., 479, 184 S. W., 395; Hunt v. Northern Cent. Ry. Co., 124 App. Div., 43, 108 N. Y. Supp., 267, proposition 3 of syllabus. The ultimate determination of this question on appeal by the advisory committee against the plaintiff is final and can not be further adjudicated by the courts. We think under the state of the record that the trial court was authorized to enter final judgment. Lehman v. Harvey, 45 Ohio App., 215, 187 N. E., 28.

A further procedural question is presented by counsel for plaintiff on application for rehearing in the trial court and motion to file third amended petition, the same being submitted with the motion. This was not presented under the claim that it was necessary to comply with the evidence, but rather to present the issue of fraud and mistake. Questions of this kind are frequently in the interest of justice allowed by the trial court in the exercise of a sound discretion. We can not conceive that a party can go through a long protracted trial upon one theory, and, after decision, insist, as a matter of right, that he should be permitted to try the case on another theory. We would further call attention to the fact that the third amended petition, as presented, charges fraud against the medical examiner. We would call attention to the fact that the regulations provided that on appeal evidence and argument in writing may be submitted. Thereby the right is given to the appellant to present his matter de novo, and allegations of fraud would have to be made against the advisory committee. We find no error in the action of the trial court in refusing plaintiff’s motion to file a third amended petition.

Finding no prejudicial error in the record, the judgment of the Common Pleas Court will be affirmed.'

Judgment affirmed.

Hornbeck and Bodey, JJ., concur.  