94 Neb. 487 | Neb. | 1913
Lead Opinion
The Nebraska Mercantile Mutual Insurance Company
We deem it unnecessary to consider the various assignments in detail. Counsel for defendants rely largely upon Burke v. Scheer, 89 Neb. 80; while counsel for plaintiff pin their faith to McCall v. Bowen, 91 Neb. 241. We think this case is ruled by McCall v. Bowen, supra. In Burke v. Scheer, supra, the case was submitted upon a general demurrer to the petition. That case involved a construction of the statute relating to mutual hail insurance societies, the provisions of which are materially different from the provisions of the law under Avhich the insurance company of which plaintiff is receiver was organized. In Burke v. Scheer but two questions were in fact determined, viz., that the legislature, by the act governing mutual hail insurance societies, prescribed both the maximum of a member’s liability and the form of action by Avhich payment of that liability could be enforced. The petition in that case did not sIioav that any by-laws had eA^er been adopted, and it Avas argued by plaintiff that because the liability of the members had not been limited
In McCall v. Bowen, supra, the company was organized under the statute authorizing the organization of hog-raisers mutual insurance companies. The provisions of
Affirmed.
Dissenting Opinion
dissenting.
I am not satisfied with the opinion in this case, because it seems to me that the three decisions, Burke v. Scheer, 89 Neb. 80, McCall v. Bowen, 91 Neb. 241, and the opinion herein are inconsistent with each other and leave the law very much in doubt.
It is sáid in the majority opinion that this case is ruled by McCall v. Bowen, and this is stated in the syllabus as the point of law decided. One reason is stated as determining that this case involves the same question as that decided in McCall v. Bowen, and two are stated as determining that it does not involve the question upon which Burke v. Scheer depends. None of these reasons, as it seems to me, can be applied at all. The first is that the statute governing this case provides: “All persons who effect insurance in any company organized under the provisions of this act shall-thereby become members of such company and continue to be during the period their insurance is in force, and no longer.” Laws 1897, cl). 45. sec. 3. A similar provision was held in McCall v. Bowen to constitute the policy-holders, as “members” of the
Section 3 of the act above quoted might by itself be considered to make policy-holders jointly liable for all debts of the company, as the similar provision was considered in McCall v. Bowen, if it were not otherwise especially provided in the act we are uoav construing. The amendment of the act in .1903 was for two purposes. It amends two sections. By section 697c, ch. 43, Comp. St. 1901, which was the tenth section of the original act, the company Avas not allowed to do business outside of the state, and could not do business in both cities and villages. That section was amended so as to allow the company to do business in both cities and villages in the United States. Section 69g, ch. 43, Comp. St. 1901, which was section 16 of the original act, provided: “No member, his or her heirs, executors, administrators or assigns, can avoid liability to such company for unpaid claims of the company accruing while a member.1’ By the amendment of this section in 1903 (Iravs 1903, ch. 48) it AAras provided that the company may in its by-laAVS limit the liability of its