a,rvjvf3dat by thereferee,and the amount awarded is not exrep.Qrt of the referee is therefore confirmed, and judgmentwmbeentered accordingly. , The general rule, in the absence of a controlling statute, is that an employ.e,,in the. performance of certain specified duties, assumes all tbe ,natural and ordinary' risks and hazards incident thereto, . and thQseatising from the negligence or carelessness of his fellow servants are no exception. Mitchell and those composing the switching crew were fellow sen"ants, and defendant! would not be liable unless plaintiff comes within the provisions of the statute of Minnesota modifying,the common-law rule, which reads as follows:
"Every rallroad corporation owning or operating a railroad in this state shall be liable for all damages sustained by any agent or servant thereof, by reason of the negligence of any other agent or servant'thereof, without contributory D;egligence on his part, when sustained within this state."
This, statute, hM been' construed to apply, not to all railroad employes, but only to those exposed to and injured by the dangers peculiar tp the use· and operation of railroads. Pearson v. Railroad Co., 49 N. W. 302, 47 Minn. 9, and cases cited. The question, then, is, does the plaintiff come within this rule? It has been held that a car repairer or section man injured by the act of a fellow servant in . carelessly and negligently running him down with a cM can recover for such injury, as being exposed to the hazards' and dangers incident to railroading; and I see no reason why this plaintiff, under the circumstances, was not exposed in like manner. I hold that the plaintiff is within the terms of the Minnesota .and. therefore can recover in this action.
ODD FELLOWS FRATERNAL ACCIDENT ASS'N OF AMERICA v. , 'EARL. (OircuitCourt of Appeals, Seventh Circuit. NO. 215.
ACCIDENT INSURANCE-NoTICE TO INSURER.
October 16, 1&)5.)
The 0., F., Ace,. Ass'n issued to one E. an "accident certificate," by It agreed to pay to him, or to a beneficiary, named therein, certain ,sul11sof mOhey as compensation for injuries of death 'resulting from bodily oinjury, effected, through external, violent, and accfdental means, causing :visible, mark upon tbebody. It was provided that, for sucp)njury, effected during the life of the certificate,which should Immediately'dil;lable E.from pursuing his occupation, a weekly indemnity should'btqYaid, for certain specified mutilations certain sums should be paid, ·and, if death, should result from such injuries alone, within 90 ofcthe accidl!I;lt,$5,OOO shoul,d be paid to the bene'1iciary. 'It wits. also provided that written notice should be given to the irisui-er,wittliI;l iOdays. of the date of the. accident ,and injury for which' claiIi1'sho.l1ld be made, stating the circumstances of the accident "an(! nlttllre ;of .the injury, that. there should be rnYcIaim to indemnity for disability unless disability occurred within 30 days from the date of ,of whichtM insurer should ,have had notice within.the 10 dlJ-Ys, , Iipr'Rny cla,im to death benefits ,lJ,nless death resulted within 90 days from the accident, bf which accident 'the insurer should M;ve had the certificate was in force; E.'stepped on
ODD FELLOWS .FRATERNAL ACCIDENT ASS'N V. EARL.
a wire nail, Intllctlng a small,. but visible, wound in: his foot. He continued to pursue his occupation for 14 days, and was then taken iII and died from lockjaw resulting from the wound. No notice of the accident was given within 10 days of the occurrence of the accident, but proofs of death were furnished in due time. Held, that the terms of the certificate did not require notice to be given within 10 days of the happening of an accident which did not immediately disable E. from pursuing his occupation, and did not, within such 10 give rise to a claim for indemnity or death benefit, and that the beneficiary was entitled to recover.
In Error to the Circuit Court of the United States for the Western District of Wisconsin. 'rhis was an action by Fanny K. Earl against the Odd Fellows Fraternal Accident Associatil:m of America. The plaintiff recovered judgment in the circuit court. Defendant brings error. Affirmed. A. L. Sanborn, for plaintiff in error. A. R. Bushnell and F. W. Hall, for defendant in error. Before WOODS, JENKINS and SHOWALTER, Circuit Judges. SHOWALTER, Circuit Judge. Plaintiff in error is an association of Odd Fellows, incorporated under the laws of Massachusetts, "for the purpose," as stated in its certificate of organization, "of rendering temporary aid and assistance to Odd Fellows holding certificates of membership in this association in case of temporary or permanent disability resulting from accident, and rendering pecuniary aid and assistance to the widows, orphans, families, and dependents of deceased Odd Fellows, members of said association, in case of death of said member from accident, or to their heirs and assigns." The scheme, in general, is, insurance by the association in favor of each member against specified losses by personal injuries from accident. The contract of insurance is called an accident certificate. Any Odd Fellow over 21 and under 60 years of age may take from the association such a certificate, and by so doing he be. comes a member of the association. The fund for the payment of losses and expenses is made up of the certificate fees, certain recurring dues, and assessments from time to time on the members. On July 23, 1892, Dr. D. G. Earl, a physician of Lake Mills, Jefferson county, Wis., became a certificate holder in said association. Defendant in error, Mrs. Fanny K. Earl, then the wife and now the widow of Dr. Earl, is named in the certificate as beneficiary; and said instrument contains a promise by the association to pay her a specified sum of money in case of her husband's death as the result of accident. On August 4, 1892, Dr. Earl accidentally stepped on .a wire nail, receiving therefrom a puncture in his foot The wound, though visible, was very slight. Dr; Earl kept on with his professionalwork without any interruption Whatever, for the 14 days immediately following the accident He then became sick; and, as the result of such accident, died of lockjaw on the 27th day of said ·month. Proofs of loss were tendered by Mrs; Earl in due time, but association declined to pay, insisting that a notice to the associav.70F.no.1-2
the accident within 10 days of tl1e date thereof wasa¢ondi. tiott precedent to liability, and that such notice had, not been given. Shesu$l on the certificate, and recovered judgment for $5,495.90 in the circuit court of the United States for the Western district of Wisconsin, and the association brings the record to this court by writ of error. The contract, or accident certificate, contains, as indicating the subject-matter thereof, the following provisions:
"In consideration of the warranties in the application for this certificate, and the agreement on the part of the certificate holder to accept the conditions contained in this certificate as the basis of this contract, and in considerationof five dollars, paid by D. G. Earl, M. D., of Lake Milis, county of Jefferson, state of Wisconsin, occupation physician, the receipt whereof is hereby acknowledged, does hereby constitute the said applicant a. certificate holder of said association, and agree to pay to the said certificate holder, upon the following conditions, the following sums of money, viz.: The sum of twenty-five dollars per week, for a period not exceeding twentysix consecutive weeks, as indemnity for loss of time resulting from bodily injury so e1l'ected during the life of this certificate through external, violent, and accidental means, which shall, independently of all other causes. immediately and wholly disable him from transacting any' and every kind of business pertaining to his occupation above stated." "The sum of twentyfive hundreddollars,.in lieu of weekly benefits, if the certificate holder shall lose a hand above the wrist, or foot above the ankle, as the result oj' accident, such accIdent as is above set forth, during' the life of this certificate." "The sum of five thousand dollars, if the eertificate holder shaIl lose both hands above the wrist, both feet above the ankle, or one, hand and one foot as aforesaid, or both eyes, as the result of such accident as above set forth. And ihe said association agree to pay to Mrs. Fanny K. Earl (wife), if living,-if not, to the executors or administrators of said member, in trust, however, for and to be forthwith paid over to his heirs at law,-the sum of five thot;lsand dollars, if the death of the certificate holder shall result from such injuries alone within ninety days from the date of said accident,'· "No indemnity or benefit shall be due or payable until ninety days after the receipt by the said association of satisfactory proof of "The association may cancel this certificate at any time by returning'to the certificate holder any a,nd all moneys paid by the certificate holder to the association, less a pro r;tta share for the time it has been in force." "The total liability of this association' on this certificate shaIl not exceed in any event the principal sum within mentioned. Therefore, in case of death ,claim, any sums previously paid as indemnity shall be deducted from said principal sum." "This insurance does not cover injuries of which there is no external visible mark upon the body,"
An accident within the purview of this certificate is a "bodily injury, effected * * * through external, vialent, and accidental means," causing an "external visible mark upon the body/I, Such accident is not itself the subject of compensation. It must occasion in the certificate holder incapacity to continue in the stated occupation, or result in the loss to him of hand, foot, eyes, Or life. These specified consequences of the accident are the risks insured against. The certificate holder's incapacity to continue in his occupation must originate contemporaneously with, and not after, the accident. Twenty-five dollars per week is to be paid pending such incapacity, but no longer in any event than 26 consecutive weeks. Upon the loss of a hand or foot, or both hands, or both feet, or both eyes, the certificate holder becomes entitled to $2,500 or $5,000,as the case may be; but his incapacity to continue in his occupation thereupon
ODD FELLOWS FRATEHNALACCIDEXl'ASS'N V. EARL.
ceases to be the of compensation, and the weekly payments, if any, to which he had previously become entitled, are reckoned as part of such fixed amount. In case death results, $5,000 is to be paid the beneficiary; but, as part of this, all sums to which the certificate holder had previously become entitled are likewise reckoned. It nowhere appears in this certificate that there must have been the incapacity for business originating contemporaneously with the accideut in order to make a claim for ultimate bodily hurt, or loss of life. A claim of either kind might arise at the time of, or within a few days after, the accident; but the point to be noted is that, if the incapacity for business, as described, does not follow the accident immediately, or at once, no claim can arise or exist in favor of the certificate holder till a specified bodily disablement results, or in favor of the beneficiary till death results. The certificate contains the following provision:
"Written notice shall be given the said association at Westfield, Mass., within ten days of the date of the accident and injury for which claim of indemnity or benefit is made, with full particulars thereof, including a statement of the time, place, and cause of the accident, the nature of the injury, and the full name alfd address of the insured and beneficiary, and unless such notice and statement is received as aforesaid, all claim to indemnity or benefit under this certificate shall be forfeited to the association."
The notice here called for is plainly to be given when a claim for indemnity by the certificate holder, or of benefit by the beneficiary, is extant. If the incapacity, contemporaneous in origin with the date of the accident, has resulted, or if the mutilation or death has taken place, withiu the 10 days, so that a claim for indemnity or benefit is outstanding, the 10 days' notice seems to be required. But we see in this language no express call for such a notice if no "claim of in· demnity or benefit" bethen made. If the words were: "Written notice shall be, or shall have been, given the said association at Westfield, Mass., within ten days of the date of the accident and injury for which claim of indemnity or benefit is made," etc., the question whether or not this defendant in error forfeited to the association the compensation to be paid her under this policy would arise. But Mrs. Earl made no claim forbenefit against the association when said 10 days expired. Her case therefore does not, and the learned counsel for plaintiff in error concede that it does not, fall within the provision quoted. As has already been suggested, this contract does not provide insurance against the accident itself, or the consequences in general of any accident. The compensation is to be given for specified hurts or losses resulting from accident, as that word is defined in the contract.The' notice above called for must describe, not only the accident, but "the nature of the injury" for which the compensation is sought. From the standpoint of Mrs. Earl, the injury was the loss of herhllsband by death. Such a notice as is described could not have been given in her case, since the injury insured against, and which constituted the subject of her "claim for benefit," had not resulted when the 10-day period expired. Each of the two sentences which follow the paragraph last spoken of contains the words, "of
which accident the association shall have had notice within the teu days above. 'mentioned of the happening thereof." These sentences appear as successive paragraphs in the certificate, arid the second reads:
"This certificate will not entitle the certificate holder, or any person in interest, to indemnity for disability of any kind, unless the disability accrues within thirty days from the date of the accident causing such disability, of which accident this association shall have had notice within the ten days above mentioned of the happening thereof."
The words, "disability of any kind," mean personal hurts, to wit, the loss of hand, or foot, or both hands, or both feet, or a hand and foot or both eyes. Said words do not refer to the incapacity for business specified as one of the losses insured against; for, by the express terms of the policy, that must begin at the time of the accident. The words, "of which accident this association shall have had notice within the ten days above mentioned of the happening thereof," apparently classify the disability or hurt which must accrue within the 30 days, as distinguished from a similar disability or hurt which may occur, in the words of the third paragraph quoted from the certificate in this opinion, "during the life of this certificate." If incapacity for business resulted at once from the accident, whereby a claim arose, and the.l0-days notice was given, and disablement in the way of mutilation afterwards resulted, such disablement, to be within the terms of the policy, must, by force of the paragraph last quoted, take place within 30 days from the date of the accident. More than this, as will be seen on reflection, said words do not necessarily import. The other provision referred to, being the one on which plaintiff in error relies, is:
"This certificate will not entitle the beneficiary herein named, or any party in interest. to death l:;Ienefits unless death results from the accident within ninety days from the date of the accident, of which accident the association shall have had notice within the ten days above mentioned of the happening thereof."
'I'his may be paraphrased as follows:
"In the case of an accident, of which the association shall have had notice within the 10 days above mentioned of the happening thereof, this certificate will not entitle the beneficiary herein named, or any party in interest, to death benefits unless death result ninety days from the date of such accident."
The words, "of which accident the association shall had notice within the ten days above mentioned of the happening thereof" do pot, as they stand, contain the sense that the notice is part of the condition precedent to liability expressed in said paragraph. They are not equivalent to "and unless the association shall have. had notice of said accident within the ten days above mentioned of the happening and further thereof." Said words do not express an condition precedent. They describe or identify the subject-matter of that condition which is expressed.. The question is whether, in view of'the language of. the certificate as already given in this opinion, said words imply the notice as a further"condition: In favor of this implication it may be urged that, by a'priOr provision, quoted above
DELAWARE, L. & W. R. CO. V. ROALEFS.
from the contract, there can be no liability for a loss of life in any case unless death result from the accident within 90 days thereof. Wherefore, the words in question add nothing to the contract,if not the further condition calling for the notice. On the other hand, and in this connection the scope of the insurance, the benefit proposed in this certificate, is to be considered, for said words may be treated as merely intensive or precautionary, rather than be brought into conflict with what is otherwise the plain sense and purpose of the contract, by attributing to them a meaning which they do not necessarily contain. An accident by a means which is external, violent, and fortuitous, and which produces external, visible mark upon the body, may for a time utterly escape the attention, or even the knowledge, of the person affected, and yet result eventually in mutilation or death. In an accident of the kind which killed Dr. Earl, there may be, for a ,time, as in his ease, nothing whatevC'l' to suggest the perils insured against, namely, mutilation or death, as possible results. Yet such accidents are within the scope of this policy. A requirement that notice of such an accident must be given within 10. days of its occurrence would be rather a cancellation of the policy with respect· to a risk distinctly specified therein, than a rule of procedure to be followed by the certificate holder,-an extinguishment of the in<;urance, rather than a limitation upon the method of ascertaining the loss to be compensated. If such a requirement be not void for repugnancy, within the rule illustrated by In re State Fire Ins. Co., 32 Law J. Ch. 300, it is so far unreasonable that we cannot put it into the contract hy implication. We cannot imply from the words in question a significance which they do not express, when the effect would be to annul part of the insurance specified in the certificate as the subjectmatter thereof. The judgment is affirmed.
DELAWARE, L. & W. R. CO. v. ROALEFS. (Circuit Court of Appeals, Third Circuit. October 28, 1895.)
HEAltSAY EVIDENCE-DECLARATIONS 1'0 PHYSICIAN.
In an action for personal injuries, it appeared that a year after the accident, when plaintiff's condition had much improved, and while under the care of another competent physician, he called on a physician of great reputation as a medical expert, made certain statements as to his condition and symptoms, and requested an opinion and physical examination. This expert was produced on the trial, and his evidence was mainly relied on by plaintiff on the question of his injuries. Held, that these circumstances showed that plaintiff called on the expert physician merely to qualify him to testify in his favor, and that hence his statements to the latter were inadmissible.
. 2. EXPERT OPTNION-EHRONEOUS ADMISSION-NECESSITY OF CHARGE.
Plaintiff's declarations to the physiciim having been wrongly admitted, and tile physician having testified as to his opinion as to plaintiff's conditiol1and the future consequences of the injuries, based on the declarations and a physical examination, it was error to refuse to charge that such opinion was to be disregarded by the jUry unless all the dedara;.. tiont;> ,by to the physlciariwere proved to be true. .