Kimball v. Lower Columbia Fire Assn.

135 P. 877 | Or. | 1913

Opinion by

Mr. Chief Justice McBride.

1. It appears from the transcript that the insurance contract in question and the by-laws were made exhibits to the complaint and a part thereof. They are omitted from the abstract and transcript, and for the purposes of this case we will assume that they support the rather indefinite allegations of the complaint.

2. In the absence of an enabling statute, a voluntary association cannot be sued by its association name. It has no legal existence, and the persons composing it must be joined individually: St. Paul Typothetae v. St. Paul Bookbinders’ Union, 94 Minn. 351 (102 N. W. 725, 3 Ann. Cas. 695); Davison v. Holden, 55 Conn. 103 (10 Atl. 515, 3 Am. St. Rep. 40); Robinson v. Robinson, 10 Me. 240.

3. 4. This is not a suit or action to recover money but to compel the officers of the association to do an act which their contract required them to do, namely, to levy an assessment for the purpose of collecting money to pay this loss and to apply the money thus collected to that purpose. There is nothing to indicate that the members of the association refuse to or object to paying this claim. If, as alleged in the complaint and admitted by the demurrer, it is a legitimate loss, it is inconceivable that any honest member would object to paying the assessment. As appears from the complaint, there is no obstacle to such payment beyond the mere arbitrary refusal of the officers to make the levy. Under such circumstances it would seem that equity is an appropriate remedy to compel the officers to perform their duty. If, as contended by counsel, every one of the 1,200 members must be made parties before a person who has complied with the terms of his policy and paid his premiums can collect for an honest loss, then the whole scheme would be a delusion, but happily such is not the case. There is too much of this attempting to evade the payment of insurance upon mere technical grounds, and such evasions should receive small consideration from the courts.

5. The court exceeded its authority in rendering a money decree against the association itself. It should have found that there was due upon the policy the sum of $2,000 and directed the defendant officials to proceed immediately to levy an assessment as provided by the contract and by-laws of the association and to collect the same, and that the moneys so collected be applied to that purpose.

A decree will be entered in accordance with this opinion, and the plaintiff will recover his costs in this court as well as in the court below. As the association is not in court, no decree will be entered as to it.

Modified : Decree Bendered.

Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice McNary concur.