#### Frank M. Hunt, Respondent, *v.*Northern Central Railway Company and Pennsylvania Railroad Company, Appellants.

Third Department,

January 8, 1908.

Association — by-laws of “ voluntary relief fund ” construed — permanent disability — loss of arm — failure to show total incapacity — immaterial amendments of by-laws.

A provision in the by-laws of a “voluntary relief fund” giving benefits to a member injured by accident while working on a railroad upon satisfactory evidence that the injury renders him “totally unable to labor, or when of a permanent character, to earn a livelihood in an employment suited to his capacity,” refers to the member’s capacity after receiving the injury. A “voluntary relief fund ” is not an insurance company, but is created to relieve a member during the time when by an accident he is prevented from working.

Hence, when a member receiving payments for the loss of an arm, who is notified by the medical examiner that his benefit will end on a certain date, abandons an appeal from the examiner’s decision to the advisory committee, which is the only relief permitted by the hy-laws, and sues, a verdict, in his favor will be reversed where there is no evidence showing permanent disability except that he lost an arm and when it appeal's that he later accepted employment by the railroad company, although at less pay.

It is immaterial that the provisions of the by-laws as to the method of determining a member’s right to benefits were changed after plaintiff became a member where, in bis application, he agreed to be bound by the existing regulations, and by any thereafter adopted.

An amendment giving the medical examiner instead of the advisory committee the original power to determine when a permanent .disability benefit should end, with right of appeal to the superintendent and advisory committee, is reasonable and does not violate any right of a member.

Appeal by the defendants, the Northern Central Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 10th day of April, 1906, upon the decision of the court, rendered after a trial at the Broome Special Term, adjudging the plaintiff to be entitled to recover $198.60 and in addition fifty' cents per day, payable monthly, during his natural life from the Pennsylvania Voluntary Relief Fund, so called.

*A. .S. Piven,*for the appellants.

*A. D. Wales*and *G. P.*Wales, for the respondent.

*44Kellogg, J.:

Plaintiff, while a member of the Pennsylvania Voluntary Relief Fund, so called, which is administered by the defendants, lost his arm hy accident while in the service of the Northern Central Railway Company. The Pennsylvania Voluntary Relief Department maintains a fund, which is. contributed by its members, for' the relief of members sustaining injury while in the service of the Pennsylvania railroad or its subsidiary companies. The regulations governing the relief fund provide, among other things: “ 42. Members will be entitled to the following benefits: *First,*payments while disabled by accident in the comjiany’s service for each day during a period not longer than fifty-two (52) weeks, at the rate of fifty (50) cents per day for a member of the first class, and of greater amounts for members of the other classes, in proportion to their contributions; and at half these rates after fifty-two (52) .weeks and during the continuance of the disability.”

Regulation 45 provides that in order to be entitled to benefits *“*There must be exterior or other positive evidence of injury, and satisfactory evidence that it renders the person totally unable to labor, or when of a permanent character, to earn a livelihood in an employment 'suited to. his capacity.. Disablement from accident occurring otherwise than as aforesaid will be classed with sickness.”

The accident to plaintiff occurred March *7,*1904, and he was paid out of the relief fund one dollar per day, the amount applicable to his membership, up to February 1, 1905. On January 3,. 1905, the medical examiner notified him that under' regulation 45 as to permanent disablement his benefit would cease February 1, 1905. After this; correspondence was had by the plaintiff and his counsel with the officers of the relief fund, and the superintendent of that department approved the action of the medical examiner,, and further correspondence resulted in the plaintiff’s appealing the matter to the advisory committee, which appeal was authorized by the regulations, governing the department. Plaintiff, after said appeal was- brought and before' its determination, withdrew the appeal, and the action of the medical examiner, affirmed by the superintendent, stands unap.pealed from and unreversed. This action was begun July 21, 1905, and thereafter the defendant-Northern Central Railway Company notified the plaintiff that his *45furlough had terminated and unless he returned to work at a time stated he would cease to be an employee of the company. If he. ceased to be an employee of „ the company he would cease to be a member of the relief fund except so far as- the liabilities were fixed with reference to his accident. Thereafter and, as we assume, under the advice of counsel, the plaintiff returned to work and was given employment as a carrier of dispatches or messages from one place to another at a. salary of forty dollars per month. Before the injury he earned seventy-five dollars per month as flagman. A member of the relief fund may retire upon giving written notice, but until such retirement the company deducts five cents a day from his wages and pays it into the relief fund. Plaintiff continued in such employment for a little over two months, and upon- the monthly settlements the five cents per day was deducted from his wages for the relief fund; and he signed vouchers for the payments in which was recited the amount deducted and paid to the relief fund. Thereafter he demanded repayment to him of the moneys so deducted and paid to the relief fund, which being refused he left the defendant’s employ. At the time he became a member of the relief fund section 45' of the regulations provided: *“*Questions as to the permanent character of disability and the continued payment of benefits on account of the same shall be determined by the .advisory committee.” Before the plaintiffs injury this regulation was amended so as to provide that in case of a disablement *“*of a permanent character, benefits will cease when the member shall be declared by the medical examiner as able to earn a livelihood in an employment suited to his capacity.”

The plaintiff’s contention is that this case must be governed by section 45, of the regulations as it existed when he became a member, and that the words “ to earn a livelihood in an employment suited to his capacity ” refer to his capacity as it existed prior to the time of the in jury and not at the time when he is claiming benefits on account of his disablement. This voluntary relief fund is- not an indemnity or accident insurance company, but is the administration of a fund created by the members themselves to relieve an unfortunate member during the time when by accident lie is prevented from earning a livelihood. The provision of section 42 that the payments are “ while disabled by accident,” together *46with the provisions of section 45, show that' the payments are to a' person wholly unable to labor on account of a temporary injury, or who is unable to earn a livelihood in an employment suited to his disabled conditions where his injury is permanent.

The plaintiff’s right to the benefits then depends upon the question whether upon February 1,1905, he ivas able to-earn a livelihood in an employment suitable to his capacity as it" then was. The medical examiner determined that he was, the superintendent approved of the determination, and if the plaintiff was dissatisfied with that determination' he had the right to appeal to the advisory committee. In liis application for" membership he expressly agreed *“*to be especially bound by Regulation numbered 65, providing for final and conclusive settlements of all disputes by reference to the superintendent of the Relief Department and an appeal from his decision to the Advisory Committee.” After having brought the appeal to the advisory committee he waived its benefits. The fact that later he entered the employ of the company at forty dollars' per month shows that he was not entirely disabled, and that a calling suitable to his capacity was. offered to and accepted by him and was after-wards rejected without reasonable cause. The evidence discloses no fact tending to show that the plaintiff Avas disabled from earning a livelihood, except the fact that he was a one-arméd man. The burden at least rested upon him to sIioav . that the decision of the medical examiner approved by the superintendent was not justified.

So far we have not considered the amendment to the by-laAA^s made after the plaintiff became a member of the association, for the ' reason that the amendment does not substantially change the plaintiff’s rights. In the original by-law the adAdsory committee was to determine as to the "continuance of benefit; under the amended by-laAV the medical examiner Avas to make such determination, with a right to appeal to the superintendent and the advisory committee. These Avére matters as to the internal management'óf the fund or association of which the plaintiff was a member, and by his application for membership he agreed to be bound by the regulations of the fund as it then existed and by any other regulations thereafter adopted, and the regulations of the fund also provide that he is especially bound by proper amendments and by-laws. The *47amendments were reasonable and violated no rights of the plaintiff. (*Wright*v. *Knights of*Maccabees, *122*App. Div. 904.)

As stated before, the record is without evidence that the plaintiff is unable to earn a livelihood in an employment suited to bis capacity, and, therefore, he has failed to establish a cause of action. The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event.

All' concurred; Cochrane, J., bj result on the ground that plaintiff should have exhausted his remedy within the organization before resorting to the courts.

Judgznent re versed on law azzd facts and new trial granted, with costs to appellant to abide event.