MCMULLEN V. UNITED BHD. OF CARPENTERS & JOINERS, 1930-NMSC-014, 34 N.M. 523, 285 P.
489 (S. Ct. 1930)
McMULLEN
vs.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
OF
INDIANAPOLIS, IND.
SUPREME COURT OF NEW MEXICO
1930-NMSC-014, 34 N.M. 523, 285 P. 489
Appeal from District Court, Bernalillo
County; Helmick, Judge.
Action by F. J. McMullen against the United
Brotherhood of Carpenters and Joiners of America, of Indianapolis, Ind.
Judgment for plaintiff, and defendant appeals.
Restrictions in the constitution and laws of a brotherhood
concerning age of beneficial members entitled to disability donations are
waived, where, with knowledge of age, disqualification, member is initiated and
pays requisite dues which are accepted and retained, and such acts constitute
estoppel.
T. J. Mabry, of Albuquerque, for
appellant.
E. D. Lujan and George S. Klock, both of
Albuquerque, for appellee.
Catron, J. Bickley, C. J., and Parker, J.,
concur. Watson and Simms, JJ., did not participate.
{*524} OPINION OF THE
COURT
{1} The United Brotherhood of
Carpenters and Joiners of America appeals from a judgment in favor of one of
its members in the sum of four hundred dollars.
{2} The material facts are:
Appellee joined the order in 1903 and continued to be a member thereof until
suspended in 1908 for nonpayment of dues; in 1909 he applied for reinstatement,
giving the date of his birth, which showed him to be a few months over the age
of fifty; he was, in accordance with the requirements of appellant's
constitution and laws, initiated and admitted as a new member; in 1917, while
working as a carpenter, appellee suffered injury which totally disabled him in his
trade; he filed his claim with the Brotherhood and exhausted all remedies
within the order as required by appellant's constitution and laws; from the
time of his reinstatement and admission into the order as a new member until
some time after the injury, he continually paid the dues required of a
beneficial member, which the order, or its local union, accepted and retained.
{3} Appellant's constitution
and laws provide:
"Section 45B. A member owing a local union any
sum equal to six months' dues shall be dropped from membership without a vote
of the union, and his name he stricken from the books. After that he can be
readmitted only as a new member, subject to such readmission fee as provided
for in the By-laws of their Local Union or District Council, together with the
sum of Three ($ 3.00) Dollars, which shall be forwarded to the Local where he
was dropped.
{*525} "Section
49A. A beneficial member to be entitled to donations must be not less than
twenty-one and not over fifty years of age at the time of admission to
membership and when he joined, must have been in sound health and not afflicted
with any disease or subject to any complaint likely to endanger his health or
cause permanent disability.
"Section 51A. Any beneficial member in good
standing, who becomes permanently disabled for life by accidental injuries
received not less than one year after becoming a member, and is thereby totally
incapacitated from ever again following the trade for a livelihood, shall be
entitled to a disability donation as prescribed in these laws, and this shall
relieve the United Brotherhood from any further obligation, and upon the
payment of his claim the Financial Secretary shall strike his name from the
books, and he shall not be eligible for readmission in any Local Union of the
United Brotherhood only as an honorary member."
They also provide, in section 52A, for the admission of
apprentices and persons between the ages of fifty and sixty as semibeneficial
members, but, as we understand, such members do not participate in total
disability donations.
{4} Appellant contends that
appellee, being over the age of fifty years when initiated into the union, was
absolutely ineligible as a beneficial member and therefore not entitled to any
disability donation; that notwithstanding payment by appellee for many years
immediately prior to his total disability, of the dues payable by a beneficial
member and the acceptance and retention thereof by the Brotherhood, it could
not waive the disqualification and pay the total disability claim contrary to
the express inhibition in its constitution and laws contained.
{5} Appellant's constitution
and laws unquestionably fix the age limit of beneficial members and their
participation in total disability donations. The evidence, however, discloses
that the dues payable by beneficial and semibeneficial members are not the
same; that appellee did not misrepresent his age but correctly gave it; that
for many years he paid the dues required by a beneficial member, which the
order accepted and retained.
{6} The order having without
question accepted and retained such dues for some sixteen years must be deemed
to have considered and classified appellee as a beneficial member. The record
contains no pleading or suggestion
{*526} of
restitution by appellant. Under the circumstances, appellant not only waived
appellee's disqualification but is estopped from now questioning his status and
rights as a beneficial member of the order. 45 C. J. (Mutual Benefit Insurance)
§§ 119-120; 19 R. C. L. (Mutual Benefit Societies) 102; Furey v. Supreme
Council Catholic K. and L., etc., 146 Ill. App. 168; Home Mut. Ben. Ass'n. v.
Rowland, 155 Ark. 450, 244 S. W. 719, 28 A. L. R. 86; Dromgold v. Royal
Neighbors of America, 261 Ill. 60, 103 N. E. 584; Richardson v. Brotherhood of
Locomotive F. & E., 70 Wash. 76, 126 P. 82, 41 L. R. A. (N. S.) 320; Bailey
v. Sovereign Camp, W. O. W., 116 Tex. 160, 286 S. W. 456, 47 A. L. R. 876.
{7} Finding no error, the
judgment of the trial court will be affirmed and it is so ordered.