63 Minn. 506 | Minn. | 1896
The defendant is a corporation under Laws 1885, c. 184 (G-. S. 1894, §§ 3296-3316). Some time in the month of November, 1893, the plaintiff joined a subordinate council of the defendant order, known as “Hennepin Council No. 10,” and thereupon this defendant issued to the plaintiff a certificate, wherein it was provided that the defendant should pay to the plaintiff a weekly indemnity of $15 in case of his disability arising from accident or sickness during the continuance of said certificate, upon certain conditions, however, among which was the compliance by plaintiff with certain rules of the defendant, and the furnishing of proofs of any claimed disabilities.
It appears that the proofs were signed by the officers of Hennepin Council No. 10, to which plaintiff belonged, and upon such proofs, the secretary of said council certified that the claim was approved at a regular meeting of that council held May 2, 1894. There is no controversy as to the actual disability of the plaintiff as claimed by him, and there is no want of good faith charged against him in whatever he did in the matter. The pivotal point in the case is this: Was it a condition precedent to the plaintiff’s right of recovery that he must procure the signature of the council medical examiner to the certificate of disability? At the time of the commencement of the disability the plaintiff gave due notice thereof to' the officers of Hennepin Council No. 10, and its officers were fully advised that such disability continued. Noth withstanding this notice, the council medical examiner refused or neglected to see the
“It shall be the duty of every claimant for disability to give notice at once, upon the disability arising, to either the commander or secretary of the council, and the council relief committee shall thereafter make a thorough investigation of the case by personal visitation by at least two of said committee calling upon the applicant at different times during each- and every week of the disability, and certifying upon the proof from such personal visitation as to the bona fides of the disability, and its continuance for full weeks of the period. The council medical examiner shall also see the applicant personally at least once for each week of disability, and certify to same in the proof. The proof shall be attested to by the members of the relief committee under the seal of the council, must be correctly and fully filled out one for each week of the claimed disability at or after the close of the week, and must be forwarded to the grand council not later than the week following.”
It thus appears that the plaintiff’s only duty was to give notice of his disability at once, either to the commander or the secretary of the council. They were the agents of the defendant to give notice to the council medical examiner, and upon such notice being given to him the council medical examiner became the agent of the defendant to visit the plaintiff. The council medical examiner was unable to certify to the proofs, because he had not visited the plaintiff. This failure upon his part was caused either by his own neglect of duty or by the neglect of the commander or secretary to notify
This case differs widely from that of Lane v. St. Paul F. & M. Ins. Co., 50 Minn. 227, 52 N. W. 649. There the policy contained a provision that the insured should, if required, furnish a certificate of the magistrate or notary public living nearest the place of fire, stating that he had examined the circumstances, and believed that the insured had honestly sustained loss to the amount that such magistrate or notary public should certify. This was required as a condition precedent to the plaintiff’s right of recovery, and it was held that the inability of the insured to procure the certificate did not excuse him from performing Ms part of the contract. But in this case the blame or fault for not certifying to the proof of the plaintiff’s disability was that of the defendant’s own agent, and it cannot set up as a defense an omission caused by the negligence of its own agent. It might be asked very pertinently, what more could the plaintiff have done to give him a right of action than he did do according to the evidence? The medical examiner was not the agent of the plaintiff, nor did Ms rights rest upon the arbitrary neglect or refusal of Dr. Glenn to visit Mm, or certify to his disability. The plaintiff paid Ms money in consideration of the certificate of indemnity, not to council No. 10, but this defendant, and received such certificate from the defendant, with whose grand secretary he had filed his application. It is not necessary to discuss the question of whether the rule in controversy was an unreasonable one or not. It was the duty of the defendant to see that its rules were complied with, and in default thereof it was liable.
The order denying a new trial is therefore affirmed.