64 Ind. App. 510 | Ind. Ct. App. | 1917
This is an action by appellants against appellee to recover on a certificate of insurance issued to George M. Wagner, Sr., father of appellants, on May 25, 1885, for the sum of $1,000. Demurrers were filed by appellee to the second and third paragraphs of amended complaint and were sustained by the court. To such rulings .appellants excepted, refused to plead over and elected to stand on the rulings of the court. Thereupon the court rendered judgment-that plaintiffs take nothing by this action and that the defendant re-, cover its costs. From this judgment appellants ap
The substance of the second paragraph of complaint so far as material here is as follows ■: On May 25, 1885, appellee’s predecessor issued to George M. Wagner, Sr., father of appellants, plaintiffs below, a certificate of membership by which it promised to pay appellants $1,000 on the death of said George M. Wagner, Sr.; that thereafter said obligation was assumed by appellee. The certificate set out in the complaint states that said Wagner received the endowment rank of the order of Knights of Pythias in section No. 3 on December 10, 1877, and is a member in good standing; that in consideration of the surrender of the certificate previously held by him and his application for the transfer to the fourth class, dated April 29, 1885, the payment of the admission fee and the further consideration of the payment hereafter of all monthly payments as required and in compliance with all the laws governing this rank now in force, or that may hereafter be enacted, the insurer will pay to the beneficiaries the sum of $1,000 upon his death while in good standing in said rank.
“Provided, however, that if, at the time of the death of said brother, one monthly payment to the Endowment Rank by members holding an equal amount of Endowment, shall not be sufficient to pay the amount of Endowment held by said brother, •the benefit to be paid in case of death shall be a sum equal to one payment to the Endowment Fund by each member holding an equal amount of Endowment. And it is understood and agreed that any violation of the within-mentioned conditions, or the requirements of the laws in force governing_ this Rank, shall render the certificate and all claims null and void and that the said Supreme Lodge shall not be liable for the above sum, or any part thereof.”'
“Each member of the Endowment Rank shall on presenting himself for obligation pay to the secretary of the Section in accordance with his age and the amount of endowment applied for, a monthly assessment as provided in the -following table, and Shall continue to pay the sanie amount each month thereafter as long as he remains a member of the Endowment Rank.”
That under said table said Wagner was required to pay a monthly assessment of $3.60, which amount he paid “up to the time his said certificate of membership was forfeited as hereinafter more fully alleged”; that prior to August 10, 1910, the defendant ascertained that the members of the fourth class were old and their certificates were rapidly maturing; that in August, 1910, a meeting was held by defendant company for the purpose of forcing old members of the fourth class to withdraw from the society and permit their certificates to lapse, notwithstanding the provisions of the constitution and of the certificate of membership issued to such members as aforesaid, and notwithstanding the provi-’ sion that said Wagner might maintain his membership on payment of $3.60 per month, and that the insurer should not be liable at his death for more than the amount produced by “one payment to the Endowment Fund by each member holding an equal amount of endowment”; that without right and in violation of its contract with said Wagner, and without his consent,
“Every member of the fourth class of the insurance department at the time when this statute takes effect and who continues his membership until December 31, 1910, shall pay a monthly payment for each month thereafter beginning with the month of January, A. D. 1911, monthly payments in accordance with his attained age and occupation and the amount provided for in his certificate, on January 1, A. D. 1911, as fixed by the table herein unless and until otherwise provided by enactment of the Supreme Lodge.”
That by the table last above mentioned rates were established and promulgated, the first number indicating the age and the second the amount to be paid as follows:
21, $1.40; 25, $1.55; 30, $1.75; 35, $2.00; 40, $2.30; 45, $2.80; 50, $3.45; 55, $4.25; 60, $5.40; 65, $6.95; 70, $9.15; 75, $12.35; 82, $20.15.
That at the time such amendment was adopted said Wagner, Sr., was eighty-two years of age and he was thereby required to pay the sum of $20.15 instead of $3.60, for each monthly assessment; that the rates of assessment so fixed by the defendant in 1910 were unreasonable, arbitrary, illegal and void, in this, that they discriminated against the older members of the society and in favor of its younger members by burdening the older members of the society with a greater loading of the expenses of the society than was placed on the younger members. The complaint then sets out a table, using the ages above set forth, and shows: (1) The cost of insurance at the different ages under the laws of the society as amended in 1910; (2) the net premiums on $1,000 of insurance according to the American experience tables of mortality at three and a half per cent.; and (3) the element of expense or loading for each $1,000 of insurance per annum included by
Age (1) (2) (3)
21 $16.80 $13.77 $3.03
25 18.60 15.10 3.50
30 21.00 17.19 3.81
35 24.00 19.91 4.09
40 27.60 23.50 4.10
45 33.60 28.35 5.25
50 41.40 34.99 6.41
55 51.00 44.13 6.87
60 64.80 56.83 7.97
65 83.80 74.65 8.75
70 109.80 99.84 9.96
75 148.20 135.07 12.53
82 241.80 223.63 18.17
It is also alleged “that the net annual premium for insurance represents the sum which will be required upon table of mortality and interest taken, less expenses to meet all policy claims as they mature; that the loading is that part of the premium added to the net premium to defray expenses of the insurer”; that on the .... day of December, 1910, the defendant demanded of said Wagner, Sr., $20.15 in payment of the assessment for the month of January, 1911, and notified him that unless the sum of $20.15 was paid as his assessment for January, 1911, his certificate of membership would be lapsed and he would be suspended from all benefits thereunder and his membership would be terminated; that said Wagner, Sr., refused to pay said increased assessment for the reason that the amount demanded was in excess of the amount for which he was liable under his contract with the defendant, and for the reason that such assessment was unreasonable, in this: that it discriminated against him and in favor of the younger members of the society by charging him
The third paragraph of complaint is the same as the second, except it contains some additional averments as to the necessity, reasonableness and uniformity of the amendments of 1910. To avoid repetition as far as possible we shall consider the averments of the second paragraph above set out as a part of the third and give the substance of the additional averments. That the rates of assessment fixed by defendant in 1910 were arbitrary, illegal and void for the reason that the in
Age (1) (2) (3) (4)
30 $1.25 $4.25 $3.00 240
34 ' 1.45 5.40 3.95 272
40 1.75 6.95 5.20 297
45 2.15 9.15 7.00 325
50 2.70 12.35 9.65 357
57 3.60 20.15 16.55 459
The memorandum accompanying the demurrer with the first paragraph of complaint is in substance as follows: (1) The averments show that neither the insured nor the plaintiffs have performed the conditions of the contract to be performed by them; (2) the allegations do not show an offer to pay $3.60 for the month of January, 1911; (3) article 4 of the constitution does not estop defendant to declare a forfeiture for nonpayment of assessments according to the laws as amended in 1910; (4) defendant had authority to raise the rates without consent of the insured; (5) that failure to pay the assessment forfeited the insurance; (6) the defendant had full authority to adopt the
The memorandum with the third paragraph is substantially the same as the above but it is also therein stated: (a) The facts alleged show a legal right to increase the assessments; (b)' that the insured was bound by the amendments of 1910 alleged in the complaint; (c) that no facts are alleged to show the amount that could be raised by one assessment at the old rate; (d) the facts alleged are insufficient to show that the increase of rate was exorbitant, excessive or unjustly discriminatory.
In Supreme Lodge, etc. v. Bieler, supra, this court on page 559 said: “All the authorities are agreed on two general rules: (1) that under the reserved power to amend laws, rules and regulations, the benefit society may not make an amendment which will impair vested contract rights; (2) that under said reserved power, the benefit society may make reasonable and necessary
In Ebert v. Mutual, etc., Assn., supra, the Supreme Court of Minnesota said: “But it is equally clear that neither by the contract of insurance, in contemplation of the laws of New York, the constitution and by-laws, nor from the natural, inherent power of the association, based upon the doctrine of the general good, does there exist authority to arbitrarily determine in favor of one class of members and against another class. * * * The board of directors had no authority to levy such an assessment as call No. 96, and the act of the defendant in cancelling plaintiff’s policy for nonpayment of the call made upon such basis was void.” In the case of Supreme Ruling, etc. v. Ericson, supra, the Supreme Court of Texas said: “The cases wherein it has been
The provisions of the contract limiting the amount due the beneficiaries to the sum produced by one assessment of each member of the insured’s class is urged as an additional reason why the increase in assessments was unnecessary.
The obligation to conform to existing and subsequently enacted laws is not modified or annulled by the provision for his beneficiaries to accept less than the full amount of his policy in certain contingencies. The latter provision is intended to provide for emergencies, or exceptional cases, but when considered in connection with the object of the society to furnish, and the member to obtain, insurance on a mutual and equitable, plan, it does not mitigate against the purpose of the company to furnish, and the member tq obtain, generally, the full amount of insurance stipulated in the certificate or by-laws. It will be presumed that, nothwithstanding the provisions aforesaid, the company contemplated furnishing, and the member intended to secure, the full amount of insurance named in the certificate.
Appellee insists that in any view taken of the right
The judgment is not limited to the two paragraphs to which demurrers were filed, but is as follows: “Come the parties and the plaintiff now elects to stand on demurrer and declines to plead over. It is therefore considered and adjudged by the court that the plaintiffs take nothing against the defendant by this action and that the defendant recover of and from the plaintiffs
The case is unlike those where an appeal was taken from a ruling on demurrers. Here the appellants refused to plead over and elected to stand on the rulings against them, and the court rendered judgment, not as to any particular ruling or paragraph of complaint, but that appellants take nothing by their action. The cases 'cited and relied on where an appeal was taken from a ruling on a pleading only are not in point. The distinction has been recognized by our Supreme Court. State, ex rel. v. Lung (1907), 168 Ind. 553, 555, 80 N. E. 541; Starkey v. Starkey (1905), 166 Ind. 140, 142, 76 N. E. 876; Kelley v. Augsperger (1908), 171 Ind. 155, 156, 85 N. E. 1004; Elliott, App. Proc. §§85, 90, 91. In Starkey v. Starkey, supra, the Supreme Court, in considering a question similar to the one before us, said: “This language is broad enough to include Della Starkey, and in the consideration of the question now presented we are not disposed to look beyond the face of the judgment, and thereupon hold that the cause was finally terminated as to Della Starkey as well as the other defendants.” -
In the case at bar the judgment disposes of all the issues as to all the parties. So long as it stands appellants are effectually barred from any recovery in said action on any and all pleadings relating thereto. Ap.pellee is not in a position to complain that the judgment is broader in its terms and gave it more relief than it was entitled to obtain had it been limited to the
The judgment is therefore reversed, with instructions to overrule the demurrers to the second and third paragraphs of complaint and for further proceedings not inconsistent with this opinion.
Note. — Reported in 116 N. E. 91. Insurance: forfeiture of policy'of beneficial association by default in dues and assessments, 52 Am. St. 574. See under (1, 3, 5) 29 Cyc 79; (2, 9) 29 Cyc 222; (4) 29 Cyc 66; (6, 7) 29 Cyc 178; (8) 29 Cyc 247.