Journeymen Barbers' International Union of America v. Bricker , 75 S.W.2d 987 ( 1934 )

On Rehearing.

Appellant, in its motion for rehearing, says the judgment is erroneous in allowing recovery for the twelve weeks in 1933. In support of this alleged ground of error it is said that section 33 of the constitution, as amended May 1, 1933, provides that no member shall be entitled to sick benefits for more than three years and the evidence shows the deceased received sick benefits for the years 1930 and 1931, and recovery was allowed herein for 1932. Wherefore, under the amendment, Bricker was not entitled to any sick benefits for the year 1933. This is defensive matter in confession and avoidance and no such defense was pleaded by the appellant. Upon examination of the answer we find the defendant pleaded that the plaintiff was not entitled to $10 per week for the 16 weeks of the year beginning June 15, 1933, but is entitled only to $6 per week for 12 weeks of said year by virtue of the amendment to section 33, adopted May 1, 1933. This is the only defensive matter pleaded by virtue of the amendment. Furthermore, the original brief of the appellant presents no point in anywise raising this question. .• The error, if any, is not fundamental and cannot be raised for the first time in this court by motion for rehearing.

The other matters referred to in the motion are disposed of in the original opinion and call for no further comment.