
    Pietro Montano, Plaintiff, v. The Missanellese Society of Mutual Aid, Defendant.
    (Supreme Court, Oneida Trial Term,
    June, 1911.)
    Fraternal and mutual benefit associations: Notice and proof of loss — Waiver of proof by failure to make objections: Actions for benefits — Questions for jury.
    In an action by a member of a mutual benefit association to recover sick benefits, where it appears that the by-laws of the society provide that “the society pays no subsidy when the certificate of the acknowledged doctor is not produced,” and also provide that the society will pay a subsidy if the member pays the monthly tax, “ this always having a medical certificate ; ” and where it also appears that, after the member had made a claim for sick benefits up to a certain date and filed a physician’s certificate, the • association ineffectually attempted to expel him, but he sued for benefits down to the date of his claim and the suit was compromised or the benefits paid; and where the member thereafter brought the present suit for benefits subsequently accruing, and it now appears that the sanitary committee of the association has the duty of calling on all the members who are sick, and it is provided that the committee will call on such members at least once a week and even more if the illness of the member requires it, but it appears that said committee never performed such duty, it is a question for the jury to determine whether, under the circumstances, the filing of an additional physician’s certificate was waived.
    Action to recover sick benefits from March 15, 1909, to November 10, 1910. The ease was tried at the above term, the court reserving the decision of the defendant’s motion for a nonsuit until the coming in of the verdict of the jury. The jury reported in favor of the plaintiff for $271.
    Sholes & Norton, for plaintiff.
    Chester W. Davis, for defendant.
   Purcell, J.

The defendant is a mutual benefit corporation, organized under the laws of this State, having for its object, among other things, the payment to its members in good standing of sums of money called " sick benefits ” during' periods of illness caused either by injury or disease. The plaintiff, while a member of the association, was taken ill in September, 1907. His illness affected his eyesight and he claims that he has never recovered and that he is now substantially blind. He continued as a member of the association until about March 7, 1909, when the society, at a meeting held on that date, undertook to expel him on account of his misconduct; but for the purposes of the trial it was held, and I think correctly, that the proceedings taken for that purpose were unlawful. People ex rel. Meads v. McDonough, 8 App. Div. 591. After the attempted expulsion, the plaintiff offered to continue to pay his dues which was refused.

About February 1, 1909, as required by the by-laws of the association, he procured and filed with it a doctor’s certificate to the effect that he had become disabled; and, not receiving payment as provided by the association’s by-laws, he brought an action in this court to recover down to about said February first, which the defendant did not defend, but compromised or settled with him. This action is brought to recover for the sick benefits mentioned from about said February first to the time of its commencement and which, if the plaintiff is entitled to recover, amount to the verdict awarded him. Before bringing this action no demand was made upon the defendant for payment; and no further doctor’s certificate than the one furnished on February 1, 1909, was filed with the defendant.

Article 14 of the defendant’s by-laws provides as follows : The society pays no subsidy when the certificate of the acknowledged doctor is not produced.”

Article 9 provides, “ The society will pay the subsidy for one year if the member is unable to work; after a year he has a right to one-half of the subsidy, if he pays the monthly tax, this always having a medical certificate.”

Was the plaintiff bound to furnish a further certificate of a physician before he brought this action; or, if so, was failure. to so furnish it waived by the defendant ? It is urged by counsel for the plaintiff that the certificate of February 1, 1909, met the requirements of the defendant’s by-laws as to when or how often a certificate should be filed; that it was not intended that more than one should be furnished, and that the defendant was to rely on the report of its sanitary committee which has the duty of calling on all the members of the Society who are sick * * * They will continue to call on them at least once a week and even more if the illness of the member requires it.” It is further said that, if it was not clear to the court that certificates were to be furnished at stated periods the question of whether the plaintiff was delinquent in furnishing them was properly submitted to the jury. Citing Kenyon v. Knight Templar, 122 N. Y. 247; White v. Hoyt, 73 id. 505; Camp v. Treanor, 143 id. 649; Trustees v. Vail, 151 id. 463.

While the question involved is not free from doubt, I am inclined to take the views of the plaintiff’s counsel, as suggested. The language of the by-laws, “ this always having a medical .certificate ” and “ The society pays no subsidy when the certificate of the acknowledged doctor is not produced,” is, I believe, as applied to the case in hand, open to different interpretations and comes within the rule that, while the construction of a written instrument is a question of daw for the court, yet where its interpretation depends upon the sense in which the language is used or depends upon facts aliunde in conneotion with the written language to ascertain the intention of the parties, the question becomes a mixed one of law and fact. Beyond this, it is a general principle of law that conditions inserted in a contract of insurance for the benefit of the company making it may be waived; that forfeitures are abhorrent and courts prompt to seize hold of circumstances that indicate an -election to waive a forfeiture, or an agreement to do so, upon which a party may have relied.

In this case, article 2 of the defendant’s by-laws/ in effect, prescribes that when the sanitary committee believe that payment of any subsidy to a sick member should cease they shall report such belief to the society. It is claimed, therefore, that this committee had a duty to perform and, if performed and the plaintiff was ill, the defendant had knowledge of it. The proofs show that this committee never visited the plaintiff at all and that, while he did attend meetings from time to time down to the time of his attempted expulsion, knowledge of his condition must have come to the sanitary committee and officers of the society. The question of waiver was, I believe, upon sufficient evidence submitted to the jury which-found as stated.

The plaintiff, after his attempted expulsion in March, 1909, might well have said that the filing of an additional certificate would be a useless ceremony or, if filed, that it would have been wholly disregarded. It seems to me that this is analogous to the rule recognized by the courts in fire insurance cases, which holds that, in case of disclaimer of liability, proofs of loss are waived.

Counsel for the defendant urges that it would be unreasonable to construe the defendant’s by-laws to mean that the plaintiff could recover benefits under a physician’s certificate showing disability only up to January 31, 1909, for the period covered by the complaint in this action and that, if he could do so, then he could continue to recover during the rest of his life. The argument is not without force; but, if the plaintiff continues to be ill during the remainder of his life, I can see nothing in the by-laws to prevent his recovering sick benefits provided he continues to be a member of the defendant in good standing. Moreover, if not permitted to recover here, he would not be without remedy, providing his illness has been continuous and of such a nature as to disable him from performing work, because he could procure a physician’s certificate as to his illness during the period in question, make demand upon the defendant for payment •and, if refused, bring his action.

The motion for a nonsuit is denied and the defendant may have exception.

A motion by the defendant for a new trial upon the minutes is entertained and denied.

Motions denied.  