46 Mich. 473 | Mich. | 1881
The plaintiff in error is organized under chapter 9fi of the Compiled Laws. The act authorizes any number of persons not less than five to organize as a corporation, for the purpose of securing “to the family or heirs of any member upon his death ” a certain sum of money, to be paid out of the corporate funds or by an assessment upon the members in the class to which the deceased belonged. The principal facts in this case are, that Isaiah Phair, on the 22d day of November, 1819, made a written application, upon
Phair died March 4, 1880, and at the time of his death there were but 1135 members of the association in the class in which he was insured. The association declined to pay upon several grounds, the most important, and the only one we shall consider, being that Hoyt was not a member of Phair’s family or one of his heirs. As showing the relations existing between Phair and Hoyt, the testimony of the latter is given in full herewith.
Again, the application, signed by Phair, and delivered, to the company, and upon which the certificate was issued,
It is thus clearly apparent that the association in accepting the application, receiving the premium, and issuing the certificate, well knew that Hoyt was not a relative, and was not claimed to be a member of Phair’s family or an heir, within ■even the most liberal construction. So that the association issued this certificate under circumstances which most strongly call upon the courts to enforce performance of their agreement, if certain imperative rules of public policy do not forbid.
The defence set up in this case must be considered as that of the public and not that of the defendant, as it stands in no position to interpose such a defence. Lyon v. Waldo 36 Mich. 353.
We need not discuss the other facts at length. The testimony of Hoyt shows that this contract was in the nature ■of a mere wager policy, and that his interest could not be ! promoted by prolonging the life of Phair. Such contracts | are so clearly contrary to public policy that they cannot be ■upheld, and must be declared absolutely void.
The judgment in this case must be reversed with costs of both courts.
The Mutual Benefit Association of Michigan — Certificate No. 4051 — Age at issue, 33-7-8 — Amount of Certificate, $5000.
In consideration of Uie application for this certificate, which is hereby-referred lo and made part of this contract and of each of the statements made therein, and in further consideration of the first payment (four dollars), receipt whereof is hereby acknowledged, and of the further payment of the semi-annual dues of one dollar, on or before the first days of July and January of each year, and upon the notice of any assessment and the prompt payment of the same (said assessment never to exceed one dollar and ten cents) during the continuance of this contract, does promise to pay to Enos Hoyt, friend of Isaiah Phair, of Jackson, in the State of Michigan, his executors, administrators or assigns, the sum of five thousand dollars within ten days after duo notice and proof of the death of Isaiah Phair; provided, there be five thousand members.of the association in good standing. In case the number of members of the association shall be less, then a sum of as many dollars as there shall be members at the death of Isaiah Phair. If the above-named dues or assessments are not paid as provided for in the articles of incorporation and by-laws, of the association, then this certificate shall be inoperative and void. In witness whereof, the Mutual Benefit Association has caused this certificate to be signed by its president and secretary at its office in the city of Detroit, this 25th day of November, 1879.
J. W. McGrath, Secretary. Geo. O. Langdon, President.
1 am the plaintiff in this case. Phair first came to board with me in December, 1878, and stayed till April 25, 1879. He returned on September 7, 1879. He came back as a boarder, and stayed as such boarder till December 25th.
Question. State whether there was any arrangement or agreement between you and Mr. Phair as to his becoming a member of the family and remaining in the family during his life-time?
Objected to by defendant as incompetent and immaterial; also incompetent to contradict the statement of no relationship set out in the application ; also because the certificate purports to insure a friend, and it cannot be shown that the family relationship existed; also as irrelevant to the issue. Objection overruled. Exceptions for defendant.
Objected to for the same reasons as like testimony of the witness Foster. Objection overruled. Exception for defendant.
A. Yes. He was owing me about $200; don’t know exactly how much. Q. And if you had charged up for all you did for him after he-became a member of the family, how much would he have owed you at the time of his death? A. About $600.
Cross-examination. Phair was not in any business when he first- came to my place. Did not know where he came from. He was to pay me $5 per week. He never paid mo anything. He did not do anything; had no employment. I kept my account with my boarders in a large book; charged them with board and gave credit for payments. Q. Why didn’t you charge Phair with his board? A. I did have him charged with his hoard until after he was insured. After he was insured I gave him his account. He was square. I gave him his hill. Q. You say you gave him a square account after the insurance? A. I gave him his bill. Yes, sir. It was just stated in the book Ike commenced to board such a date, so much per week. I tore the leaf out, and gave it to him. Q. He never paid you anything? A. No, sir. Q. Any others around you had boarding like that? A. I had one — George Proudfit. I did not know where Phair went after he left April 5, 1879. Didn’t keep any track of him. Never dunned him for my pay while he was gone. No-arrangement was made when he came back in September, ’79; just came and stopped. Q. You had at the Sheridan House Mr. White (bar-tender) and this man (Phair) working around? A. No, sir. I did not have thia
Minutes of evidence of witness before coroner’s jury here read as follows:
Deceased has worked for me about two months; has worked off and on for about a year. He acted as night watch. Understood his complaint was whisky. He was a man who drank pretty freely. I gave him $10 a month and board. Do not know of his having a family; understand he has a brother. I also have George Proudfit insured in my favor. Mr. Hoar found Phair dead this morning. He was filling Phair’s place while he was indisposed. Phair' had free access to the bar. Think he drank some outside of my place. I knew he was drinking when I had him insured. Captain Proudfit had his life insurance in my favor, and I mine in his. But when it came to paying for the policy he could not pay for mine, but I have kept his up. It was talking about this in Phair’s presence the way I happened to get his policy. Q. Now, Dr. Crawford swore, Mr. Hoyt, that he attended Phair some time before the insurance, and that you paid him. Is that correct? A. Think I paid him 75 cents then. I was thinking that was at the American House; that is my impression. I don’t remember any other time. I don’t recollect how long this was before we moved from the American to the Sheridan; but I recollect paying him 75 cents. Q. Then you were not only allowing him his board without getting any money, but you were paying his doctor’s bills? A. I paid 75 cents. I don't know what was the matter with Phair for which the doctor prescribed. Phair was not a man of any property that I know of. Some of the clothes were furnished before the insurance. Q. So that you were not only boarding him, but giving him clothes before? A. Yes, sir; a little.