Breil v. Claus Groth Plattdutschen Vereen , 84 Neb. 155 ( 1909 )

Epperson, 0.

On May 29,1906, the plaintiff was, and for several years had been, a member of the defendant society. This society is a mutual fraternal association, organized for the purpose of paying sick benefits to its members at the rate of $8 a week, exclusive of the first week of sickness, and for a period not exceeding 26 Aveeks. No policies, certificates or contracts are issued to its members, but liability is fixed by the rules and regulations adopted for its government, and which provide, omitting provisions not pertinent : ‘‘Every member of the society is entitled to sick benefits if his sickness is such that the member must remain constantly in the house and under the care and treatment of a registered physician.” On the 29th day of May, 1906, the plaintiff was suffering with cataracts of the eyes. This trouble continued until after the in-' stitution of this action on November 13, 1906. Plaintiff sued to recover a balance due for 23 weeks’ benefit; defendant having paid him for five weeks. He recovered in the court below, and defendant appealed.

About the second week of his said illness, and acting under the directions of his physician, he went to a hospital, where an operation was performed, and where he was retained for a period of two weeks for treatment. He then went to his home in the city of Omaha, where his physician resided, and where also the hospital was maintained. His physician never visited him at his home, nor did plaintiff perpetually remain within the house. He stepped into the yard occasionally, and went from one to four times each week to his physician’s office. He returned to the hospital a few weeks later (the exact time is not disclosed), and again remained about two weeks, and suffered additional operations. He then spent two months at his home, until October or November, then returned once more to the hospital for further operations. This brings us to the time the suit was instituted, and perhaps beyond such time. The exact dates of the plaintiff’s confinement in the hospital are not given, but it is reasonable to presume that such periods prior to the institution of this suit did not exceed six weeks. Plaintiff experienced considerable pain and inflammation of the eyes, but his physical condition was such that he did not need to remain within the house, except when in the hospital, and he was strong enough to go to his physician’s office. When he did so, he was accompanied by some member of his family. This was necessary on account of his defective eyesight. On two or three occasions prior to the institution of the suit he went to the place of business of the president of the defendant society and made demands for the sick benefits sued for. The defendant admitted a liability for five, weeks of his sickness, covering, we presume, the time plaintiff was in the hospital, but refused liability for tbe remainder of tbe time, claiming that tbe plaintiff was not required by bis sickness to remain in the bouse.

Tbe rules and regulations of tbe defendant association constitute tbe agreement between the parties, and, in construing it, it is necessary to give force to tbe meaning which tbe parties evidently intended tbe words used should have. We are convinced that tbe only interpretation which may be given to this contract is that tbe defendant intended to pay to its members a weekly benefit during sickness, provided tbe sickness was such as would disable tbe member from departing from tbe bouse for tbe purpose of attending to tbe ordinary affairs of life. That a person “must remain constantly in tbe bouse” does not necessarily mean that one must remain perpetually within tbe four walls of a house. Within tbe meaning of tbe by-law quoted, one is confined to the bouse by sickness if bis condition is such that be is unable to attend to tbe ordinary affairs of life and is required to remain in tbe bouse, except when making necessary visits to bis physician. It cannot be said that a patient is not confined to bis bouse constantly during an illness, which is characterized by recurring periods of severity, although at intervals be may step into bis yard, or make visits to bis physician, or other short and unusual trips,, be at all times being unable to resume tbe ordinary duties or pleasures of life.

In Hoffman v. Michigan Home & Hospital Ass’n, 128 Mich. 323, 54 L. R. A. 746, it was held that a similar contract is not defeated by tbe fact that the insured went out by direction of bis physician for an occasional and necessary airing, if, by reason of tbe illness, be was continuously confined to the bouse tbe larger portion of tbe time. In tbe case at bar, there can be no doubt but that tbe plaintiff was entitled to recover during tbe time he was in tbe hospital. With reference to the intervening periods of time, it cannot be said that be was convalescing, except following bis last visit to tbe hospital, and, as to that time, we are not concerned. Between operations he was simply undergoing treatment for the purpose of preparing for the following operation. At all times he suffered intense pain. There was inflammation about the eyes, and there can be no doubt but that he Avas physically disabled from attending to his daily business or from enjoying the ordinary pleasures of life. The construction placed upon the contract by the trial court and the jury was consistent with the above.

We find no error in the record, and recommend that the judgment be affirmed.

Duffie, Goon and Galkins, GO., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is

Affirmed.