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Kirkpatrick v. United Fed. of P.c.b. Ass'n

OCTOBER 21, 1964.

ROBERT J. KIRKPATRICK, PLAINTIFF-APPELLEE,

v.

UNITED FEDERATION OF POSTAL CLERK'S BENEFIT ASSOCIATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Franklin County; the Hon. WILLIAM G. EOVALDI, Judge, presiding. Reversed and remanded for new trial.

REYNOLDS, J.

Rehearing denied November 16, 1964.

This is a suit for the full amount of a benefit certificate issued by the defendant to the plaintiff, on the ground that the plaintiff had become permanently disabled and was entitled under the benefit certificate to the full amount of the disability payments provided for in the certificate, namely $4,000. The matter was tried before a jury and the jury rendered a verdict for the plaintiff in the amount of $4,000. Judgment was entered on the verdict and the defendant appeals.

No questions on the pleadings are raised by the appeal. The defendant contends that the plaintiff failed to make application for permanent disability benefits within the time required by the benefit certificate, that all conditions of the benefit certificate were not met by the plaintiff; that the plaintiff had failed to prove he was permanently disabled within the meaning of the agreement, and that improper evidence was admitted by the trial court.

If improper evidence of a character that would warrant reversal was admitted at the trial, it is immaterial in the disposition of this appeal whether the conditions of the benefit certificate were met or complied with. For that reason, this court will first discuss the claim of the admission of improper evidence on the part of the plaintiff.

Samuel Berst, a witness for the plaintiff, testified that he was a postal clerk of 20 years standing and had worked with the plaintiff off and on for about 12 years. That his work occasionally put him in contact with the plaintiff. From 1956 to 1960, he was president of the Carbondale Branch of the defendant benefit association. As such president, he approved claims of the plaintiff for disability. He went to the home of the plaintiff and made a separate investigation on each claim of the plaintiff. This witness was asked the following questions and made the following answers:

"Q. Now, then, Mr. Berst, did you subsequently make an investigation to determine whether or not Robert J. Kirkpatrick was permanently and totally disabled from his duties as postal clerk?

"A. I did.

"Q. What was the results of your investigation, Mr. Berst?

"A. His retirement was from the complete disability due to his accident, June 1955."

The defendant objected to the questions, but the objection was overruled.

Edwin Bowers, postal transportation clerk, testified that he succeeded Mr. Berst as President of the Carbondale Branch of the defendant benefit association. He testified as such president he made an investigation of the disability claim of the plaintiff. This witness was asked the following question and made the following answer:

"Q. And what did your investigation ...


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