Jackson v. Northwestern Mutual Relief Ass'n, 73 Wis. 507

73 Wis. 507 | Wis. | 1889

Oassoday, J.

This is an action at law to recover damages. for an alleged breach of contract of insurance. There is no claim that the facts alleged do not constitute a binding contract of insurance, nor that they do not show a breach of such contract. The theory of the defendant is that, conceding the validity of the contract and the bre'ach of it, yet that the plaintiff has mistaken his remedy by bringing his action at law instead of proceeding in equity to enforce the assessment mentioned in the contract. If such is the fact, then, under the earlier decisions of this court, and since adhered to, the question may be .properly raised by demurrer.

The only question presented is, therefore, whether, upon the showing made, an action at law for damages by reason of the breach of contract alleged can be maintained. The question, it will be observed, is not as to the true amount or the true measure of damages, but only whether the plaintiff is entitled to substantial damages for such breach. There are certainly authorities to the effect that a bill in equity may be maintained, to enforce payment of such certificates by compelling a specific performance of similar contracts through assessments as stipulated. Covenant Mut. Ben. Asso. v. Sears, 114 Ill. 108; Smith v. Covenant Mut. Ben. Asso. 24 Fed. Rep. 689; Rainsbarger v. Union Mut. Aid Asso. 72 Iowa, 191; Tobin v. Western Mut. Aid Society, 72 Iowa, 261. It has also been held that mandamus is not an appropriate remedy to compel such assessments. Burland v. Northwestern Mut. Ben. Asso. 47 Mich. 424; Excelsior Mut. Aid Asso. v. Riddle, 91 Ind. 84. The decided weight of authority, however, seems to be to the effect that an action at law to recover damages may be maintained upon such contract for a refusal or neglect to make such assessment. Earnshaw v. Sun Mut. Aid Society, 68 Md. 465; Suppiger v. Covenant Mut. Ben. Asso. 20 Bradw. 595; Neskern v. Northwestern E. & L. Asso. 30 Minn. 406; Lued-ers’ Ex'r v. Hartford L. & A. Ins. Co. 12 Fed. Rep. 465; Kansas Protective Union v. Whitt, 36 Kan. 760; Kaw Valley L. Asso. v. Lemke, 19 Pac. Rep. (Kan.), 337; Freeman v. National Ben. Society, 42 Hun, 252; Reynolds v. Equitable Accident Asso. 1 N. Y. Supp. 738; Elkhart Mut. A., B. & R. Asso. v. Houghton, 103 Ind. 286; Burland v. Northwestern Mut. Ben. Association, 47 Mich. 424; Bac. Ben. Soc. § 453. But to maintain such action at law, such breach must be alleged and proved. Curtis v. Mut. Ben. Life Co. 48 Conn. 98; Taylor v. National T. Relief Union, 94 Mo. 35.

The principal difference in these two classes of adjudications turns upon the question whether such recovery for such breach of contract is limited to mere nominal damages, or extends to substantial damages. In some of these cases which allow substantial damages the courts have gone so far as to hold that the beneficiaries may recover the maximum amount named in the contract, unless the defendant shows by pleadings and proof that such sum should be reduced. But, as indicated in some of the other cases cited, the recovery cannot exceed the amount stipulated in the contract. We make no attempt to analyze the cases, nor to point out any supposed fallacies. We agree with that class of cases which hold, in effect, that, for a substantial breach of such contract, the beneficiary may recover substantial damages in an action at law. As indicated in Earnshaw v. Sun Mut. Aid Society, 68 Md. 465, there may be some difficulty as to the true measure of damages and the enforcement of the judgment in case of recovery. So there may be difficulty in obtaining the requisite proof to establish the plaintiff’s claim. But these considerations are not before us on this demurrer, which concedes the truthfulness of all the allegations of the complaint.

The question is one of pleading upon contract. Under the contract in question the plaintiff was entitled, upon the death of his wife, to eighty per cent, of an assessment to be thereupon levied and collected therefor, not exceeding $4,000, less any payment, etc. TJpon such death it became the duty of the defendant under the contract to make such levy and collection. According to the allegations of the complaint, it not only neglected and refused to do so, but denied all liability. It is also alleged, in effect, and of course admitted by the demurrer, that eighty per cent, of such assessment “ would have amounted to at least four thousand dollars.” 'With this confession before us we cannot hold, as a matter of law, that the plaintiff has only sustained nominal damages by reason of such breach, merety because there may be a total or partial failure of proof, or that it may be difficult in advance of such levy and attempted collection of such assessment to ascertain the precise amount of damages which the plaintiff may be entitled to recover. Several of the authorities cited sustain these views. The breach of an agreement to make such levy and collection of such assessment seems to be somewhat similar to the breach of an agreement to insure, upon which actions at law have frequently been sustained.

By the Oourt.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.