200 Mass. 579 | Mass. | 1909
Material parts of the agreement which the defendant, by its policy of insurance, made with the plaintiff, were in substance that on the expiration of the tontine dividend period all surplus of profits derived from similar policies which should not then be in force should be apportioned equitably among such policies as should complete their tontine dividend periods, and that thereupon the plaintiff should have the option “ to withdraw in cash [his] policy’s entire share of the assets, i. e. the accumulated reserve, and in addition thereto the surplus apportioned” by the defendant to his policy, or to use his share wholly or in part in payment for future insurance.' The plain
Some of the general questions raised by the defendant’s demurrer to this bill have been already considered in Pierce v. Equitable Assurance Society, 145 Mass. 56, and in the decision made upon the defendant’s objections to the right of this court to entertain this case reported in 196 Mass. 143. It is true, as was said in the Pierce case, ubi supra, that the relation between the defendant and the plaintiff is not that of trustee and cestui que trust, but that of debtor and creditor. This rule is now well settled in the courts. See besides the decisions referred to in the Pierce case (145 Mass, at p. 59), Peters v. Equitable Assurance Co. 196 Mass. 143, 148, 149; Uhlman v. New York Ins. Co. 109 N. Y. 421; Brown v. Equitable Assurance Society, 142 Fed. Rep. 835; Everson v. Equitable Assurance Society, 68 Fed. Rep. 258. But under the allegations of this bill the plaintiff is entitled to know before exercising the option given to him what is the amount of his policy’s share of the assets, including the accumulated income and the surplus apportioned by the defendant to his policy, especially in view of the defendant’s express agreement that all surplus of profits from policies like his “ shall be
The defendant’s contention is that irrespective of the allegations of fraud this bill will not lie for an accounting; that in the absence of fraud the plaintiff is bound by the apportionment of the surplus made by the defendant; and that the bill does not contain such allegations of fraud or irregularity as to justify a court of equity in reviewing the apportionment made by the defendant.
1. In reference to the first contention of the defendant, we need not consider whether we should now follow all of the reasoning in Pierce v. Equitable Assurance Society, or rather should adopt the defendant’s contention that the plaintiff’s only right to compel an accounting from the defendant is incidental to the enforcement of some legal claim against it, and that until the exercise of his option as to what he will require from the defendant he has no such legal claim; that there is not shown to be at present any obligation on the part of the defendant to render an account to the plaintiff either by reason of the relationship between them or because of any provision in the policy or the language of any statute. Brown v. Equitable Assurance Society, 142 Fed. Rep. 835, 842. Everson v. Equitable Assurance Society, 68 Fed. Rep. 258, and 71 Fed. Rep. 570. Hunton v. Equitable Assurance Society, 45 Fed. Rep. 661. Greeff v. Equitable Assurance Society, 160 N. Y. 19, much of the reasoning in which may be applied to this case, although the stipulations of the policy there considered were not the same as are now before us. There is very much force in what was said by Peckham, J., in Uhlman v. New York Ins. Co. 109 N. Y. 421, 434, as to the consequences that would follow if every policy holder of a class like this had the right to call the defendant to account “ and to cause it to give in the trial of the action a detailed account of every transaction (proved by reference to or the production of its
The bill before us expressly charges such fraud, dishonesty and wrongful misappropriation; and the amendment at least makes these allegations sufficiently specific to call for an answer. The bare charge that the defendant or its officers had been guilty of fraud would not of course be sufficient without setting out the facts which constituted the fraud relied on. May v. Wood, 172 Mass. 11. Blair v. Telegram Newspaper Co. 172 Mass. 201,
2. As to the defendant’s second contention, the weight of authority elsewhere undoubtedly is against the dictum in Pierce v. Equitable Assurance Society, 145 Mass. 56, 58, 59, and is to the effect that the apportionment made by the defendant is prima facie correct, and is not to be overthrown without evidence of fraudulent conduct on its part affecting the result, or at least of some error in the -manner of making the apportionment, or in the principles upon which it was based. Greeff v. Equitable Assurance Society, 160 N. Y. 19. Uhlman v. New York Ins. Co. 109 N. Y. 421. Buford v. Equitable Assurance Society, 98 N. Y. Supp. 152. Gadd v. Equitable Assurance Society, 97 Fed. Rep. 834. Everson v. Equitable Assurance Society, 68 Fed. Rep. 258, and 71 Fed. Rep. 570. Bain v. Ætna Ins. Co. 20 Ont. 6. But we need not further consider this question; for the fact that such fraudulent conduct is expressly charged in the bill makes it impossible to sustain the demurrer for this reason.
3. The contention that the bill as amended does not contain such allegations of fraud or misconduct as to warrant equity in interfering has been already sufficiently considered.
It may be added that while there is ground for the contention that this policy is a New York contract, to be governed by the
Demurrer overruled.