122 Ind. 567 | Ind. | 1890
This action is prosecuted by Aloysius Pfister,administrator of the estate of Joseph Gerwig, deceased, and by Rosina Gerwig, widow of the intestate, against the German Mutual Insurance Company, and eight children of the deceased. The complaint is founded on a policy of insurance issued to the intestate in his lifetime, and conditioned that the loss shall be payable to the insured, his heirs, executors, or administrators. Both personal and real property are covered by the policy, and each species of property is separately insured. After the death of the assured the property described in the policy was destroyed by fire. It is averred in the complaint that the administrator obtained an order to sell the property for the payment of the debts of the decedent, but before sale was made the property was burned. One of the paragraphs of the answer sets forth a by-law of the company forbidding the transfer of the property, and providing that in case of a transfer the policy shall be void, and it is averred that a transfer was made by operation of law, inasmuch as the death of the assured transferred the property to his heirs. To this paragraph a demurrer was properly sustained, for the reason that a transfer to the heirs,
The seventh paragraph of the answer sets forth a by-law, and avers that it was violated by the assured by the execution of a mortgage. The by-law pleaded reads thus : “ Transfers of policies are to be made only by the assent of the board of directors. Every transfer or incumbrance of the property whether by mortgage, judgment lien, or otherwise, after the same has been insured in the company, cancels the policy, and the same is null and void, except such transfer or incumbrance is ratified by the board of directors, and shall be noted on the policy.” The answer is addressed to so much of the complaint as seeks a recovery for the value of the real estate, and offers to confess judgment for the value of the personal property. Issue was formed by a reply. The mortgage was introduced in evidence, and the court instructed the jury to find for the defendant, the insurance company. The defendant subsequently paid into court the amount of the insurance upon the personal property, and the penalty provided by statute. The plaintiffs accepted -the sum paid into court, and, as the record recites, “ waive the error arising from the failure of the jury to find in their verdict against the defendant, the German Mutual Fire Insurance Company of Indiana, for the damages for such loss upon the counters and shelving described in the policy of insurance set up in the complaint, but waive nothing further.” It thus appears that the plaintiffs recovered, and received the full value of the personal property, so that the only question is as to the right to recover the value of the real estate destroyed by fire.
There is some conflict in the authorities as to whether an administrator can sue on a policy of insurance on real estate
If it be true that the heirs alone can maintain the action, then the administrator has no cause of action, but if it be true that the administrator alone can sue, then the heirs have no cause of action, and, therefore, whatever view be taken, the complaint is bad, since it is firmly settled that a complaint by two or more persons must show a cause of action in all, or it will be bad on demurrer. The rule, as asserted in a long line of decisions, is that a complaint not good as to all the plaintiffs is not good as to any of them. Brumfield v. Drook, 101 Ind. 190; Ætna Ins. Co. v. Kittles, 81 Ind. 96; Schee v. Wiseman, 79 Ind. 389; Berkshire v. Shultz, 25 Ind. 523.
We regard the transfer by mortgage as fatal to the right of recovery. A person who enters a mutual insurance company becomes a member of the company, and is bound to take notice of the by-laws in force at the time he acquires his membership. Bauer v. Samson Lodge, etc., 102 Ind. 262; Holland v. Taylor, 111 Ind. 121 ; Supreme Lodge, etc., s. Knight, 117 Ind. 489; Gray v. Supreme Lodge, 118 Ind. 293.
It is urged that the directors had no authority to adopt
There is an essential difference between strangers and the members or stockholders of a corporation, for strangers are not always precluded from questioning the validity of bylaws, nor always bound to take notice of them, although there are instances in which they can not question them, and wherein they are chargeable with notice of them. 1 Waterman Corp. 273.
One of the duties of a person who becomes a member of a mutual insurance company is to inform himself of its bylaws, and he can not escape their force, although he may have had no actual knowledge of them. A very strong application of this rule was made in a mutual insurance company case in which Chief Justice Gibson declared that without such a rule mutual companies could not-exist. Susquehanna Ins. Co. v. Perrine, 7 Watts & Sergt. 348. In the case of Miller v. Hillsborough Mutual Ins., etc., Ass’n, 42 N. J. Eq. 459, the general doctrine was carried very far, the court saying: “ But it is clear that a member of the company is chargeable with notice of all the by-laws of the company and of the conditions of insurance adopted by the company, whether contained in the by-laws or in resolutions.” It is, perhaps, to be regretted that the Legislature has not re
Judgment affirmed.