DUBOIS, J. This is an action of assumpsit brought by the administrator of the estate of George H. Dary, deceased, against the defendant corporation, of which the decedent was a member up to the time of his death, to recover the sum of $440 for sick benefits due to the plaintiff's intestate at the rate of $2 per day from November 1, 1903, to May 5, 1904, and at the rate of 50 cents per day from May 6, 1904, to September 26, 1904. The plea of the defendant is the general issue, accompanied by an affidavit of valid defense, upon the ground that the plaintiff's intestate waived his claim to the sick benefits for which this suit is brought.
The case was submitted to the court upon the following agreed statement of facts: "The plaintiff's intestate was at the time of his death, and for more than two years prior thereto had been, an active member of the Providence Police Association, and was also on the list of the active police force, drawing forty-five per centum of the regular pay of a lieutenant of police, being on the pension list. Under certain conditions, the members of said Providence Police Association are entitled to sick benefits, according to the by-laws of said association, including the by-laws in force prior to May 5, 1904, and those in force subsequently thereto to the time of the death of the plaintiff's intestate, which are hereby made a part of said statement. On the 28th day of June, A. D. 1903, the plaintiff's intestate became sick. September 8, 1903, he rendered a bill to said association for benefits from June 28, 1903. This bill was for a dollar a day, and the association claimed it was incorrect, and asked him to amend it. A case was pending in court to determine the status of one on pension list under rules of association. Said association met monthly for the payment of bills and sick benefits. He rendered a bill from June 28, 1903, for sick benefits to October 31, 1903, less seven days omitted pursuant to the by-laws, which said bill was paid. A copy of said bill, marked 'Exhibit A,' is hereto annexed and made a part hereof. Said bill amounted to balance due him of $249.50, and was paid by said association, after which time the said plaintiff's intestate rendered no bill to said association for sick benefits, or made any claim for the same during his lifetime. He died on the 26th day of September, A. D. 1904. Said plaintiff's intestate had diabetes from June, 1903, and from the time when he first claimed sick benefits to his death. He had also two cerebral hemorrhages, the last one being the immediate cause of his death. The plaintiff in this case has testimony to prove, and the defendant has no testimony to contradict the same, that the plaintiff was sick enough to entitle him to sick benefits after said 31st day of October, A. D. 1903, and that it was known to Doctor Clifford H. Griffin, his attending physician, who was also the police surgeon of the city of Providence, R. I., during the entire time of said sickness, but it is admitted that these facts were unknown to the said defendant. Said plaintiff's intestate was under the care of Dr. Griffin from June, 1903, until the time of his death on September 26, 1904, as appears from a copy of the certificate of Dr. Griffin, the original whereof is in the possession of the said association, which said copy, marked 'Exhibit B,' is annexed hereto and made a part hereof. The plaintiff in this case has testimony to prove, and the defendant has no testimony to contradict the same, that from June 28, 1903, to October 31, 1903, and from the latter date until about a week before his death, the plaintiff's intestate was not confined to his house, but was during his entire sickness from June, 1903, to the time of his death, prevented on account of his sickness from doing any kind of remunerative work, and was during all that period under the professional care of Dr. Clifford H. Griffin; but it is admitted that the fact of said physician's care since October 31, 1903, was unknown to said association. The fact, if so, that the plaintiff's intestate was sick enough to entitle him to sick benefits after said 31st day of October, 1903, was unknown to the defendant, and the defendant took no steps to ascertain if this was so because of its said ignorance, although it is admitted that the plaintiff has testimony to prove that said plaintiff's intestate was sick enough to entitle him to said benefits from said last-named time until his death, and that the defendant has no evidence to the contrary. He was not mentally or physically unable to have claimed sick benefits during the period after said 31st day of October, A. D. 1903, except for a short time before his death, and his said sickness was not caused by any immoral or improper conduct. By the provisions of section 2 of said article 11, in operation until May 5, 1904, benefits were payable as follows: 'First. To active members of the police force, one dollar per day while receiving full pay from the city, and two dollars per day when full pay ceases.' On May 5, 1904, said section 2 of said article was amended so that benefits were payable as follows: 'First. To active members of the police association, fifty cents per day while receiving pay from the city, whether from the police pension fund or otherwise, and two dollars per day when such pay ceased.' By the last paragraph of 'second clause' of article 11 of said by-laws in operation until amended May 5, 1904, it is provided that all applications for benefits
under said article by honorary members must be made to the secretary in writing within two weeks from the commencement of the sickness or disability for which the benefits are claimed, and no such requirement by active members existed under the by-laws until the amendment thereof, adopted May 5, 1904, when it was provided for the first time by clause 3 of said section 2 of article 11 of said by-laws that all applications for benefits under said article by honorary or superannuated members, or members on the pension list, must be made to the secretary in writing within one week from the commencement of the sickness or disability for which the benefits are claimed. The claim made in this case is for sick benefits from October 31, 1003, to September 26, 1904, inclusive. The Police Manual and the by-laws of the Providence Police Association are introduced as a part of the evidence to be submitted to the court."
Exhibit A.
To 9 quarters' dues @ $2.00 (Jan. 1/02, to Mar. 31/04)......
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$18 00
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By am't of legal dues (9 at 50c)
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4 50
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$13 50
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To 33 days' sick benefits, June 28/03, to July 31/03 (inclusive), 33 days less 7 days, 26 days, at $2.00.........
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52 00
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(Bill for this item rendered and returned for correction.)
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To 92 days' sick benefits, from Aug. 1/03, to Oct. 31/03, at $20.00, inclusive...............
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184 00
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