23 Ind. App. 565 | Ind. Ct. App. | 1899
This action was by the receiver of the Masonic Benevolent Association of Central Illinois, a foreign corporation, to collect assessments which were alleged to have accrued prior to the dissolution of the association and before the receiver was appointed. The complaint was in two paragraphs. Appellee demurred to each paragraph of complaint. Appellee answered in two paragraphs, the first of which was a general denial. Appellant’s demurrer to the second paragraph of answer was overruled. A reply of general denial put the cause at issue. There was a trial by the court resulting in a general finding for appellee. Appellant’s motion for a new trial was overruled, and judgment rendered in appellee’s favor. Appellant assigns as error the action of the lower court in overruling the demurrer to the second paragraph of answer, and in overruling the motion for a new trial. Appellee has assigned cross-errors separately questioning the action of the lower court in overruling his demurrer to each paragraph of the complaint.
The only questions presented by the demurrer to the complaint are these: Can the receiver of an assessment insurance company collect an assessment from one who has accepted a policy but has* ceased paying thereon? Is the contract unilateral, and is the only penalty which follows a refusal to pay, the loss of the policy-holder’s rights thereunder? These are new questions in this State.. Life insurance contracts have been universally held to be unilateral unless by their express terms made otherwise. The certificates issued by the association for which appellant was the receiver, were beneficiary certificates payable upon the death of the holders. They were in their nature policies of insurance; the company so issuing them was substantially a life insurance company. In 2 May on Ins. §550a, it is said: “There are certain organizations prevalent in this country and elsewhere, under the name of relief, benefit, or benevolent societies, or some similar name, which generally have for their object aid to their members, or their widows and children after the decease of their respective members, and in some cases having both objects. These associations, though not speculative, and not based upon capital paid in as an investment, have nevertheless a general purpose of mutual protection. * * *■ Their ■certificates of membership often resemble, both in form and substance, ordinary policies of life insurance; and the courts have with great uniformity treated them as substantially life insurance companies, applying to them, and to the relatives
The case of Lehman v. Clark, Rec., 174 Ill. 279, 51 N. E. 222, was in all respects like the case at bar. Appellee, in that case, was the same person as the appellant in the case at bar. Precisely the same questions were before the supreme court' of Illinois as are here presented. It was -there held that the certificate or policy of insurance, such as was issued to the appellee in this case, was a unilateral contract. The case of Lehman v. Clark, Rec., supra, was decided June 23, 1898, which was after the trial and judgment in the case at bar. The supreme court of Illinois in construing this contract of insurance say: “Such contracts have heretofore always been considered unilateral and so the whole plan1 for withdrawing is embraced in these self-executing clauses of the by-laws and contract. The member’s failure to pay is his declaration of severance, and the forfeiture provided for in the by-laws and contract is the association’s compensation. The option is with the member, and not with the association. When appellant became a member he was required, .among other things, to pay a sum into the mortuary surplus fund. This sum was two maximum assessments on his $4,000 certificate. This money went directly into the fund for .paying death losses, — not a cent of it for dues or expenses. This more than paid his insurance from the date of his admission to the date of the maturity of his assessment for the first death benefit after he became a member. When he had paid the first assessment that paid for his insurance to the maturity of the second and so on. The requirements for admission, not only in this association but in all benefit associations or societies, more than cover the member’s insurance from the date of his admission to the maturity of the first assessment after he becomes
We think the supreme court of Illinois arrived at the proper conclusion. Appellant correctly contends that the
■Appellant went to trial upon an insufficient complaint. The trial resulted in favor of appellee. There being no cause of action stated against appellee, the judgment of the lower court in his favor was correct, and the intervening errors, if any, will not be considered. Judgment affirmed.