On appeal from the Supreme Court.
For the appellant, Henry H. Rust and Andrew Foulds, Jr.
For the respondent, Feder & Rinzler.
The opinion of the court was delivered by
BODINE, J. A verdict was recovered in the Bergen Circuit in favor of the plaintiff, who sued as administratrix of Annie Tula's estate, as administratrix of Anthony Tula's estate and as guardian of their minor children. The suit grows out of a contract made by Anthony Tula with the defendant society. The contract is evidenced by Tula's application for membership and the constitution and by-laws of the society. Only a part of the by-laws are printed.
The defendant society has for its object the payment of sick and death benefits to members. It was organized May 2d, 1890, and Tula became a member in December, 1913, and regularly paid dues until March of 1925.
Annie Tula was paralyzed for about ten years before her death, October 13th, 1927. Anthony Tula fell ill in February of 1925. His feet were swollen and covered with large boils and he had a bad heart. He died February 22d, 1927, from heart disease. There was testimony that during the entire period of his illness he was unable to work and was under a physician's care.
The by-laws provide that sick benefits are not payable if the member is not prevented from following his usual occupation, and further that a physician must visit the member at least twice a week. The society has a sick committee whose duty it is to visit the sick and afflicted and report to the society.
The plaintiff, Mrs. Bushko, testified that from February, 1925, until Anthony was taken to the hospital, August 19th, 1925, he remained at her home and was so sick that he was unable to work and was visited by physicians every day. She reported the condition of Anthony Tula and his wife to the society, both by word of mouth and by letter. However, the sick committee did not visit them.
It is urged that there was no proof of medical attendance. On the proofs it was open to the jury to find compliance with the by-laws from the testimony adduced. That the doctors who attended Tula were not called does not strip Mrs. Bushko's testimony of probative force. The by-laws do require immediate notice of illness, but they do not direct the form of such notice. The jury could find that there had been notice within the meaning of the by-laws.
Of course, during Tula's illness he did not keep up the payment of dues, and appellant claims that since these payments were not kept up he was not entitled to sick benefits and the right to recover death benefits also fell. The learned trial judge charged as follows:
"Where an association is indebted to a member for benefits to which he has become entitled, his dues and assessments may be set off against the same, so that their ...