39 Minn. 174 | Minn. | 1888
The plaintiff is the widow of Bobert W. Kerr, -who, on the 20th day of April, 1884, became a member of the defendant association, and held a certificate or policy of insurance issued by it at the time of his death, which, defendant claims, was by sui.cide, July 27, 1885, in the dominion of Canada. The plaintiff is named as the beneficiary in this policy.
2. The court also rejected an offer by defendant to prove that the last assessment made by the company before the death of the assured was made on the 1st day of July, 1885, and that notice was duly given to him not later than the 10th day of July, calling for the payment thereof (the amount being $10) not later than the 10th day of August, 1885, at the office of the company in Minneapolis, 'and that unless the same was paid by said Bobert W. Kerr, the beneficiary, or some one for them, on or before the 10th day of August, said policy would be lapsed and void; that on the 10th day of August no part of the same was paid, and the policy was accordingly declared
3. It is alleged and found that the plaintiff gave notice and made and filed due proof with the defendant of the death of the assured more.than 90 days before the commencement of this action, and we do not see that the answer puts this allegation in issue. We must assume that the condition of the policy in this respect was complied with.
4. The principal question in the case is as to the amount which plaintiff is entitled to recover. By their contract the association undertake to pay “an amount equal to $1.50 for each certificate in force at the time such amount shall become due, but not to exceed $4,000, to himself, if living at the expiration of 22 years from the date hereof, and if not, to his wife, within 90 days after the receipt by the association of due notice and proof of the death of the said Robert W. Kerr; and this association promises to pay the full amount of this certificate at its maturity: provided,there shall be sufficient moneys in the fund from which this certificate shall become payable: and •provided further, that said moneys shall be distributed proportionately in payment of this and any other certificate becoming due and payable the same quarter; such payment in no case to exceed the amount named in this certificate.” The charter of the association provides the method of raising money by assessments, and it also provides that the period of 22 years named in the certificate shall be known as the “endowment period,” and the sum designated as payable to a
There is some dispute over the terms of the policy in relation, to the extent of the defendant’s liability to beneficiaries; but it is obvious, we think, that the obligation is to pay not less than $1.50 for each certificate in force, nor more than $4,000, to be paid from the assessment fund. In respect to the amount to be raised for the beneficiary, the parties, therefore, have stipulated that it shall be at least $1.50 for each certificate. An action for the full amount of $4,000, which would in any ease be the limit of liability, could only be maintained upon its being shown that there was that amount in the assessment fund subject to be applied to the claim ratably with others in the same quarter; which fact is not alleged or found. But in respect to the first-named sum, that is clearly obligatory upon the association, and they are, by their charter, authorized to make assessments, regular and special, upon the members, payable within 40 and 30 days, respectively. The defendant has refused to pay or recognize or make any provision for the claim of the plaintiff as such beneficiary. The measure of plaintiff's damages is therefore the sum of $1.50 for each certificate in force. It is found that there were 570 certificates in force when Kerr died, and it is not disputed by the defendant that this number was subject to assessment. The defendants are in default in not making provision for and paying this sum at least, and plaintiff is therefore shown to be entitled to recover the same in this action. But there being no moneys in the assessment
5. It is contended by the plaintiff that in conformity with the con-, struction which defendant had previously placed on the terms of the policy in respect to payments made from the assessment fund, its uniform usage had been to pay the maximum amount in each case, and that such was the established rule of the company. It is found that prior to the death of Kerr this defendant had paid its certificates in full from the assessment fund. It does not appear, however, that such payments were not made strictly in accordance with the terms of ’the charter, out of funds properly appropriated to such certificates ratably with others. We see nothing in the case to warrant us in assuming that the company has bound itself by any particular rule or usage so as to modify or control the construction of the contract as respects the nature and extent of its obligations to its members.
The difficulties which beset beneficiaries in attempting to collect the maximum sums named in the policy, or, in some cases, any specific sum, in actions for damages upon such contracts, arise intrinsically from the nature of the contract which the parties have made, and which, therefore, the courts are unable to remedy. Tobin v. Western Mut. Aid Society, 72 Iowa, 261, (33 N. W. Rep. 663.) The plaintiff in this case is entitled to recover the sum of $855, with interest from the commencement of this action. The order denying a new trial will be affirmed, but the case will be remanded, and the order of the district court for judgment will be modified as above.