(264 Pa. 415) ley car. Each side was supported by three DICKERSON v. MIDVALE BENEFICIAL no exception was taken thereto; however, 1919.) April 21, 687-BENEFICIAL ASSOCIATION- - RIGHTS OF INSURED "INSURANCE COMPANY." defendant submitted a request for binding 1. INSURANCE [1] Assuming as we must the truth of plaintiff's evidence, the case could not have been withdrawn from the jury, nor judgment entered for defendant n. o. v.; for where a taxicab is driven rapidly past, and in close proximity to, the entrance of a trolley car, where passengers are going in and out, it justifies a finding of negligence, aside from any traffic regulation, and there was nothing in the case which the court could declare contributory negligence. As no exception was taken to the charge, and no request made for further instructions, appellant is not in a position to urge that it was inadequate or insufficient. An unincorporated beneficial society is not an "insurance company," and a member and out of the rules of the society and contract behis beneficiary have only such rights as grow tween the parties. and Phrases, First and Second Series, Insurance Company.] [Ed. Note.-For other definitions, see Words 2. INSURANCE 795-BENEFICIAL SOCIETYDEATH BENEFITS-LIABILITY. Where the by-laws of an unincorporated beneficial society provided for payment of death benefits to the beneficiary only and none was named or the designation was fatally defective, such benefits could not be recovered by the member's administrator, as such benefits formed no part of the member's estate, and on failure of a beneficiary the fund reverted to the society. 3. INSURANCE 795-BENEFICIAL ASSOCIATION-DEATH BENEFITS-RECOVERY. Where by-laws of a beneficial society providfor payment of death benefits to a beneficiary designated by the member and the beneficiary ministrator, after payment of benefits to one was defectively designated, the member's adwho court found was the beneficiary intended, could not recover for benefit of member's mother, as she as next of kin had no legal claim to benefits, directly or through the administrator. [2] The action of the trial court in passing upon a motion for a new trial is subject to review only in case of manifest abuse of dis-ed cretion. We have carefully examined all of the numerous motions, statements, petitions, affidavits, and depositions, submitted in support of the rule for a new trial, but are not satisfied that the trial court's action thereon constitutes a manifest abuse of discretion. So far as appears, the suggestion that the verdict is excessive was not made in the court below, and hence is not properly before us; but it could not be sustained, if it were, as nothing is shown to Bill in equity by Addie W. Dickerson, as justify this court in exercising the very ex-administratrix of the estate of Manuel Andre ceptional power of granting a new trial Monteiro (sometimes called Manuel Monte), upon that ground. deceased, against the Midvale Beneficial Association, an unincorporated beneficial society, and others. From a decree dismissing the bill, plaintiff appeals. Appeal dismissed. [3] No objection was made at the time or exception taken to the remarks of plaintiff's counsel in his address to the jury, and we cannot now consider the error assigned thereto. A party may not sit by and take his chances of a verdict, and then, if adverse, complain of something the opposing counsel said in his summing up to the jury. Complaint is made of the trial court's refusal to correct the record, so as to show that plaintiff's counsel made the opening argument to the jury, and also so as to make an assignee of the judgment use plaintiff; but so far as we can discover, those matters are immaterial. We find nothing in the record to justify a reversal. The assignments of error are overruled, and the judgment is aflirmed. Appeal from Court of Common Pleas, Philadelphia County. Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEP. HART, JJ. G. Edward Dickerson, of Philadelphia, and John B. Edwards, of Providence, R. I., for appellant. Robert T. McCracken and Roberts, Montgomery & McKeehan, all of Philadelphia, for appellees. WALLING, J. This bill in equity is by an administrator to recover death benefits from a beneficial society. In 1883 the de (107 A.) fendant was organized as an unincorporated part of the deceased member's estate and his beneficial association, made up exclusively administrator had no standing to bring suit of the employés of the Midvale Steel Com- therefor. From which decree plaintiff pany of Philadelphia, and so continued un- brought this appeal. til 1916, when it became chartered as a [1, 2] The able presentation of appellant's Pennsylvania corporation. The deceased, case has failed to convince us of error in the Manuel Andre Monteiro (sometimes called conclusion of the trial court. A beneficial Manuel Monte), an employé of the company, society, like defendant, is not an insurance became a member of the society in 1910, company (Heasley v. Heasley, 191 Pa. 539, and so continued until his accidental death 43 Atl. 364; Northwestern Masonic Aid in 1911. In his application for membership Ass'n v. Jones et al., 154 Pa. 99, 26 Atl. 253, he was entitled to and did designate a bene- 35 Am. St. Rep. 810), and therein the memficiary; that clause of his application being ber and his beneficiary have such rights only as follows: as grow out of the rules of the society and contract between the parties. Here the only provision for payment of death benefits was to the beneficiary, and if none was named, or the designation fatally defective, there is no right of recovery, as such benefits form no part of the deceased member's estate. 19 R. C. L. p. 1311, § 100; Kelley's Est., 29 Pa. Super. Ct. 106. When alive the fund was not his, and his only power over it was "Also, that I hereby designate Brother Tony residing same as the person to whom shall be paid, in case of my death, in manner set forth in article VI, section 2, of the above bylaws, any money, provided to be paid in such case by said by-laws." western Masonic Aid Ass'n v. Jones et al., supra); and on failure to do so the fund reverted to the society. See Bacon on the Law of Life and Accident Insurance (4th Ed.) §§ 306, 310, 313; Order of Mutual Companions v. Griest et al., 76 Cal. 494, 18 Pac. 652. [3] The contention that plaintiff can maintain the action for the benefit of Monteiro's mother cannot be sustained. She was not named as a beneficiary-the son might have so designated her, but did not-and she as next of kin has no legal claim upon the fund, recoverable directly or through an administrator. Were this a life insurance contract, then, in the absence of a duly constituted The by-laws provided, inter alia, for the payment of death benefits to the beneficiary named in the application, also authorized the right to appoint a beneficiary (Norththe member to change the beneficiary; but there was no provision in the application, bylaws, or elsewhere, for payment of death benefits to any one except a designated beneficiary, and nothing to indicate an intention that the same should become a part of the deceased member's estate. On the death of Monteiro, his beneficiary was entitled to receive from the society the sum of $1,861.75, which it was ready and willing to pay; but, owing to a defect in the designation of beneficiary (as the deceased had no brother "Tony"), doubt arose as to whom it should be paid. Whereupon an issue was framed between rival claimants to determine its ownership. This was in court of common pleas, No. 5, of Philadelphia county, where the beneficiary, the administrator of the insurfund was finally awarded and paid to one Antonio Pedro Graca, who that court found was the beneficiary intended. Thereafter plaintiff was appointed administrator of the deceased and brought this suit against the society for the same fund. After a full hearing and consideration, the court below by final decree dismissed the bill upon the ground, inter alia, that the fund was no appellant. ed's estate might recover same for the benefit of those legally entitled; but that rule does not apply to a beneficial society. As our conclusion upon this branch of the case is fatal to plaintiff's action, it is not necessary to consider the other questions raised in the record. The appeal is dismissed at the costs of (264 Pa. 426) tailed to patrol the bridge of the PennsylKELLY et al. v. PENNSYLVANIA R. CO. vania Railroad Company crossing the Delaware river from Bridesburg, Pa., to Delair, (Supreme Court of Pennsylvania. April 21, N. J. The bridge was about 60 feet above the 1919.) bank of the river, ran approximately east and west, had on it two railroad tracks, one for east-bound and the other for west-bound traffic between the nearest rails of which was a distance of about 4 feet, and from the outer rail of each of which to the side of the bridge, which had no railing, was a distance of about 8 inches. Some 40 or 50 feet west of the bridge the tracks curved to the northward, preventing a view of east-bound trains while west-bound trains were passing. The orders given to the soldiers were that they should pace up and down the 4 feet wide space between the tracks and across to the edge of the bridge, "to protect the bridge and leave no loiterers around; nobody to pass under the bridge without a pass signed by an official of the railroad," and if a train or trains approached "the only instructions that we got was that when a train came in one direction, they were to get on the other track and avoid that train," and in the case of trains on both tracks "if they saw them their instructions were to lie down flat on their belly" in the 4 feet space between the tracks. The reason for those instructions obviously was because the suction of passing trains made the space between the tracks dangerous, and therefore was not to be occupied while trains were passing, unless it was necessary so to do because of the approach of trains on both tracks. There is no direct evidence Appeal from Court of Common Pleas, Phil- showing defendant knew of those instrucadelphia County. tions, but it knew the bridge was being guarded by United States soldiers; it knew they were pacing up and down between the two tracks; it knew of the dangerous character of the location between the tracks; it knew there was no place beyond the tracks where the soldiers could go during the passage of trains; it knew the soldiers had to comply with the orders given them by their superior officers under penalty of military punishment; and quite probably it knew the orders specifying what those on guard should do while trains were passing, and even if it was James J. Breen and James B. McGrane, could easily have ascertained what those ignorant thereof it had ample time to and Trespass by Vincent De P. Kelly, by his father and next friend, Thomas W. Kelly, and by Thomas W. Kelly in his own right, against the Pennsylvania Railroad Company, to recover damages for personal injuries. From an order refusing to take off a compulsory nonsuit, plaintiffs appeal. Reversed, and a procedendo awarded. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. both of Philadelphia, for appellants. Francis B. Biddle and Sharswood Brinton, both of Philadelphia, for appellee. orders were. From plaintiffs' evidence, which on this appeal must be accepted as true we find that on June 21, 1917, about 7:30 p. m., while Vin SIMPSON, J. Vincent De P. Kelly, a mi-cent was patrolling the east end of the bridge, nor, by his father and next friend Thomas W. a freight train approached from the New Kelly, and Thomas W. Kelly in his own right, Jersey side. As it neared him, he looked to sued the Pennsylvania Railroad to recover see if a train was coming on the east-bound for injuries to Vincent, the trial judge en- track, and seeing none obeyed his orders and tered a nonsuit which the court in banc re- stepped on that track to await the passage of fused to set aside, and this appeal followed. the freight train, carefully looking over the Vincent was a private in the 109th United edge of the bridge to see if there were susStates Infantry, and was one of a squad de-picious characters on the tracks below. As (107 A.) he straightened up after his inspection he recent cases of Reed v. Pittsburgh, Cincinsaw for the first time an east-bound Atlantic nati, Chicago & St. Louis Ry. Co., 243 Pa. 562, City express train almost on him and ap- 90 Atl. 359, and Van Zandt v. Phila., Balt. & proaching very fast; he attempted to jump Washington R. R. Co., 248 Pa. 276, 93 Atl. out of the way, but before he could escape it | 1010, it is not necessary to elaborate the matstruck him, threw him over the side of the ter further. bridge, and he received the injuries of which he complains. No signal was given of the approach of the train, and it was not visible because of the curve of the tracks and the presence of the freight train on the other track, and could not be heard because of the noise made by the latter. [2] Vincent was, of course, in a dangerous place and bound to exercise care to prevent injury; but the railroad company knew he or some of his fellows would be there, and it was also obliged to exercise the utmost care to avoid injuring them. He had a right to assume it would exercise that care, and [1] It is conceded the question of defend- give him warning of the approach of trains, ant's negligence was for the jury; but it and cannot be held guilty of contributory was contended, and the court below held, negligence because he did not anticipate a Vincent was guilty of contributory negligence neglect of duty upon its part. Wagner v. because when the freight train approached Phila. Rapid Transit Co., 252 Pa. 354, 97 Atl. he stepped upon the other track instead of 471. lying down in the space between the two sets [3] We have also repeatedly said one of tracks. We think that conclusion is clear-placed in imminent peril by the negligence of ly erroneous. To have then laid down would another is not chargeable with contributory not only have been in violation of his orders and have subjected him to military discipline, but it would also have prevented him from fully performing his duty. The United States government had charge of the bridge at that time, and its soldiers cannot be put in the dilemma of being punished if they do not obey their superior officers, and, for the benefit of a negligent company whose property they are guarding, of being punished also if they do. Appellant might just as well claim that one of its own employés, strictly obeying its specific orders, should be held guilty of contributory negligence for so doing. The words imply the doing of something a party ought not to do, and cannot be construed to cover the doing of that which he ought to do. The subject has been so fully covered in our negligence because he does not select the The judgment of nonsuit is reversed, and a procedendo awarded. (264 Pa. 444) SHIMER v. ALDINE TRUST CO. et al. owner thereof"; that, plaintiff being in default, all the stock pledged as collateral was, after demand and notice, offered at public (Supreme Court of Pennsylvania. April 21, vendue by well-known auctioneers in the city 1919.) of Philadelphia, and for want of other purchasers the trust company bought in the wire APPEAL AND ERROR 1009(2) CHANCEL-glass company stock for a sum sufficient to LOR'S FINDINGS OF FACT-REVIEW. pay the balance of plaintiff's debt, interest, The chancellor's findings of fact, which in- and costs; that, after selling all the stock volve the credibility of witnesses and the weight which could be disposed of to others, for the to be given their testimony, will be given the figure which it had brought at the beforeeffect of a verdict, and they will not be disturb-mentioned public auction, defendant Wethed on appeal, where there is testimony to support them. erill, who is the president of the trust company, took 74 shares thereof in his own name, at the same price; finally, that every step in Appeal from Court of Common Pleas, Phil- the matter of the sale of this stock was in adelphia County. strict accord with law and the contract be Bill by J. N. M. Shimer against the Aldine Trust Company and another, with intervention by Elizabeth C. Shimer, wife of J. N. M. Shimer, for retransfer of stock and for an accounting. From a decree dismissing the bill, plaintiff appeals. Affirmed. Argued before MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. J. S. Freeman and V. Gilpin Robinson, of Philadelphia, for appellant. Charles F. Da Costa, of Philadelphia, for appellees. MOSCHZISKER, J. * tween the parties, and "there was no con- Plaintiff contended in the court below that, notwithstanding the terms of his notes, there had been a supplemental contract between defendants and himself, whereby the trust company had agreed not to sell any of the pledged stock, so long as there was no depreciation in the value thereof and interest on the loan was kept paid up; but, unfortunately for plaintiff, the chancellor made a distinct finding that no such contract was ever entered into or existed. At argument before us, J. N. M. Shimer plaintiff strenuously contended that this, as pledged certain stock of the Crucible Steel well as other findings of fact against him, Castings Company and the Pennsylvania were not "justified by the evidence," and Wire Glass Company to the Aldine Trust | earnestly urged that the testimony be read in Company, as collateral for a loan. Subse-full, which we have done with the utmost quently, this collateral was bought in by the trust company, who sold part of it to W. K. Wetherill. Shimer filed a bill in equity against the trust company and Wetherill, praying that they be ordered to retransfer to him so much of this stock as was then in their possession, and to account for such parts thereof as had been sold by them, together with dividends. After hearing, the bill was dismissed, and plaintiff has appealed. Elizabeth C. Shimer, wife of J. N. M. Shimer, who intervened as a plaintiff, has not joined in this appeal. A party by the name of Cunningham was originally included as defendant; but appellant states, in his paper book, he is not now "pressing any claim against Cunningham"; further, that "no claim is now made to recover any portion of the Crucible Steel Castings Company's stock." The chancellor found, inter alia, that the notes accompanying the collateral empowered the holders thereof, “for purposes of liquidation," without demand or notice, to dispose of such collateral, either by public or private sale, "with a right on the part of such holders to become the purchaser and absolute care. Our examination of the record as a whole, including the evidence, does not lead to any doubt concerning the correctness of the chancellor's findings; but, as recently said in Cruzan v. Cruzan, 243 Pa. 165, 166, 89 Atl. 876: "If a doubt existed, it would not be ground for reversal; nothing but clear error will warrant the setting aside of findings of fact by a chancellor. * The findings of fact by a judge, which involve the credibility of witnesses and the weight to be given their testimony, will be given the effect of a verdict there is testimony to support them." of a jury, and they will not be disturbed where Appellant, in his paper book, admits: "If the findings of fact by the trial judge are correct, his conclusions of law follow as a matter of course." Since we have already decided the findings will not be disturbed, nothing more need be said. The assignments of error are overruled, and the decree is affirmed; appellant to pay the costs, |