121 F. 403 | U.S. Circuit Court for the District of Middle Tennessee | 1902
It is the opinion of the court that the motion of the defendant to direct a verdict in its favor should be granted, and the verdict will be so entered. I might now close the case, and leave the question where the law puts it; but it would be intolerable to counsel on either side, and to you, that I should make no explanation for taking that course. But what I am saying is not a charge upon which any exceptions can be taken, or of which any error can be predicated, as I am simply explaining to you the reasons why I direct your verdict in favor of the defendant, for your own information, and as a matter of courtesy to you and counsel.
I only wish I had time to take this record out, and go quite carefully over the details of it, in order to fully justify that judgment; but that is a matter of impossibility, under the circumstances under which we are trying this case here and now. But I may say to you that when the plan of assessment assurance was first commenced among our people and those of England, where it has obtained for some time, it was denied by the writers upon the subject, and those who are familiar with the philosophy and science of insurance, that it was a practicable and workable scheme of insurance; and it was attacked from the beginning as being an absurd system, as being one that would result just as this policy has resulted, and for just the very reasons that have been given here in reference to the outcome of it to this disappointed plaintiff. Originally the same objections were urged against assessment insurance as those which we find exhibited by the facts of this case and to considering it a desirable or effective plan or means of accomplishing the purpose of life insurance. That controversy and conflict among those who know something of the scientific values of plans of life insurance has been raging ever since. The assessment plan was a very attractive system, and, if it could be worked, it would undoubtedly be more attractive than other forms of insurance which are regarded as more
Now, that is what has happened to Mr. Gaut, the plaintiff, in this case. He has been bitterly disappointed in the outcome, no doubt; but that does not give him a right to recover the money he paid into this company — one which hé selected on account of its attractiveness; and this misfortune of his cannot give him a right to get back money which voluntarily he paid into an ill-devised scheme of insurance. The only thing he can do, or has a right to do, is to recover any damages that may have accrued to him by reason of the company’s violation of their contract, and hence he says that which has been done under the contract is a violation of it, and is illegal. The court does not think so. The court does not think there is any illegality in the procedure or practices of this company, as shown by the proof, in making these assessments. Undoubtedly it started out with the idea it would apportion the assessments from
Now, as to the rates of insurance. The taproot of this whole controversy is that Mr. Gaut claims that by this contract he had secured to himself the right to have, during all his lifetime or during the continuance of this policy, assessments made against him as of the age of 61, when he entered the company, and not as of any advanced age, and that when the company came, according to its experience and necessities, to assess any needed sum upon all members of the company, it must assess his share as of the age of 61, and not at his then attained age. The court does not think that is one of the stipulations of this policy. He has not been accorded by the charter the right to demand that method and rate of assessment, if you call it so, or ratio of assessment. He has not had secured to him, by any expressed words of the contract, the right to have any assessment made as of the age of 61. It is true that this company assessed him at that age for 12 years, but it was its right to do that, and then to abandon that method at any time. It was not a construction by the company of their contract with the plaintiff; but it was a method chosen, by which the company hoped to make its business attractive, and so attractive that it might last as a rule of assessment always, no doubt; but when the time came that it was confronted with changed conditions, and confronted with the fact that it did not have enough money to pay constantly increasing losses, it was within the province of their contract, and strictly within its provisions, and wholly within the competency of the charter, for the company to devise a means by which these assessments could be increased; and then, likewise, under the terms of the contract and the charter, it was permissible to have changed the method or proportion of assessments from the age of entry to the age attained at the time the assessment was made. I think there is no doubt but that that construction of the contract and the charter is correct, and, this being so, to thus make the assessments would not violate the contract. As to whether that change was wise or not, it is not for us to say. There is nothing here to show it was fraudulently done; nothing to show it was unnecessarily done; nothing even to show that it could have been done in some way that would have been better ; and we must take it, in the absence of such proof as that, and assume it to be true, that the company did the best its judgment dictated; and this plaintiff cannot complain if the company was acting within the exercise of its charter powers and rights, and within the terms of the contract, no matter how disastrous the change was to him at his greatly advanced age. He has outlived the value of his insurance on the plan which, unfortunately, he selected when he was younger.
The next question is whether it is an excessive assessment. If that were so, he might refuse to pay the premium, and recover the money back, but it has not been shown that it was excessive. How can we sav it was excessive, unless we know all the facts of the assessment No. 97 which he refused to pay? It is true, we can see that it is high, and quite prohibitive to continuance in the company
Another complaint is that the plaintiff has been wronged, and his contract violated, in the manner in which the company has treated its reserve fund. 1 do not see any proof of that. So far as we have any proof, it rather shows to the contrary, but we are not sufficiently advised by the proof to say, as to the reserve fund, just what the scheme was; but, as far as Mr. Gaut was concerned, he had a provision in his contract relating to that reserve fund, or to his share of it, and he got the two bonds to which he was entitled, and used them; and the testimony of the witnesses of the company is that it would have gone on and delivered to him whatever bonds he was entitled to under the contract, if he had continued his insurance. It was a bond which assigned to him his share of the reserve fund, and which he might use or make available to that amount on certain conditions mentioned in the bond. He got that benefit for some time. It is not necessary to say how much, but he certainly got two bonds, and some part of them was used by him. There is no proof to show he was entitled, under this new scheme of assessments, to any more of the reserve fund, or that he was in any way injured by the company’s treatment of that fund. There were to be new issues of bonds on plans of five and ten year series. Also there were made some different arrangements about the process of distributing this reserve fund, than that Mr. Gaut had; but until he has shown by the proof that these differences in arrangement, whatever they were, resulted in some denial to him of his right or share in the reserve fund, he has no right to complain.
Another complaint suggested is that the company might have paid some of its losses out of the reserve fund," .under the terms of his contract, but I do not see that that has been established by the proof. We cannot say by any proof before us that in 1898, or at any time,
The outcome of it all is that the plaintiff relies upon the fact that this company has assessed him at the rate of 73 years instead of at 61, which it had done for 12 or 15 years after his insurance commenced. Unfair as that may have been to Mr. Gaut, burdensome and a hardship as it was, it was a right that the company had, to assess him that way, under the charter and the contract; and having that right, and not having shown that the company violated its discretion or judgment in the premises, I do not see how he has any cause of action because of the hardship. The law1 does not relieve against hardships of that kind in the bargains that are made by the parties to the contract.
There are judicial decisions that have been read in our hearing, on both sides of the question, as to the proper construction of the charter of this company and the contracts of insurance under it; but, until it is settled by the Supreme Court, there will be differences of opinions, for judges differ like other people. There seems to have been in Virginia and Georgia and in New York one view, and in North Carolina and Minnesota another. The opinion in North Carolina is a very strong opinion, and possibly is the sound one, but I do not think so. It proceeds upon the theory that this company and Gaut had made a contract which forbade the company to make any assessment other than at the age of entry into the company; but, from what I have said, you will understand that I do not concur in that view, but agree with the Court of Appeals in the Eighth Circuit that the company had abundant power under its charter and under the plaintiff’s contract to do what it did do, and that it was bound to do what was required to raise the funds for its losses according to the circumstances of its operations and the necessities that confronted it, and that these requirements of the company were to be met as it appeared best to them at the time they arose; and we do not see, from any proof we have here, that the company violated that duty; and I feel compelled to say, notwithstanding the loss to Mr. Gaut, that he has not shown such a case as would authorize us to give him a verdict upon any showing he has made in that behalf.
Mr. Gaut, of course you desire to take an exception. It is not required that you should take any exception to the language of the court in giving its reasons for directing a verdict, for that is unnecessary. The stenographer will enter on the record an exception on the part of Mr. Gaut to the court’s action in directing a verdict in this case for the defendant.