Ass'n v. Lemke

• Decision Date: 09 February 1889
• Citation: Ass'n v. Lemke, 20 P. 512, 40 Kan. 661 (Kan. 1889)
• Parties: THE KAW LIFE ASSOCIATION et al. v. JENNIE LEMKE
• Court: Kansas Supreme Court

20 P. 512

40 Kan. 661

THE KAW LIFE ASSOCIATION et al. v. JENNIE LEMKE

Supreme Court of Kansas

February 9, 1889

For former opinion, see 19 P. 337.

Motion for Rehearing.

THE facts are stated in Life Association v. Lemke, ante, pp. 142 et seq. The plaintiffs in error filed a motion for a rehearing, which the court decided at its session in February, 1889, and then filed the opinion, infra.

Judgment reversed.

Thomas P. Fenlon, and Warner, Deane & Hagerman, for plaintiffs in error.

L. B & S. E. Wheat, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

Two of the grounds upon which this application for a rehearing is based, depend upon written and oral testimony which was offered on the trial. Upon a reexamination of the record it is found that these questions are not before the court and cannot be considered, for the reason that it does not appear that all of the testimony is included in the record.

The third ground is based upon what is apparent upon the face of the pleadings, and was not before considered, but is now pressed upon our attention. It is that the bond upon which the action was brought is the obligation of the officers, and not of the corporation for which they were acting. It is contended that the bond required by the statute, and the one that was given, is an official bond, and only continued in force during the term of office; and that as it appears upon the face of the bond that the terms of office expired on July 8, 1885, and as the insured did not die until the following October, no liability arises on the bond. It appears from the pleadings that the Kaw Life Association was in existence prior to the enactment of the statute providing for the organization and control of mutual life insurance companies, which was approved March 7, 1885. (Laws of 1885, ch. 131.) By the terms of that act it was made applicable to such associations or corporations as were already organized and admitted into the state to transact life or accident business on the assessment plan. Following the requirements of the act, the officers of this association filed a bond in the sum of $ 50,000, executed by themselves and sureties, with the superintendent of insurance, on April 25, 1885. Upon the face of the bond it is shown that the officers were elected annually, and that the official year of the association ended on July 8th. The petition shows that the decease of Lemke occurred October 5, 1885, about three months after the expiration of the official year within which the bond was given. It will be conceded that if the bond is an official and an annual one, the obligors are only bound for the defaults that occurred during the year for which the bond was given. The contract of a surety is favorably regarded by the law, and even in cases where the officer is authorized to hold over his term and until his successor is elected and qualified, the liability on the official bond is not extended beyond the duration of the term. When an officer is chosen for a term of limited duration and a bond for the faithful performance of duties is given, the presumption is that the obligors or sureties only contract for the faithfulness of the officer during that time, and the obligation of the sureties is not extended by the mere fact that such officer is reelected or for any reason holds over the term. ( Riddel v. School Dist., 15 Kan. 168; Monger v. Comm'rs of Harvey Co., 22 id. 318; Johns v. Hastings, 22 id. 464; Comm'rs of Rice Co. v. Lawrence, 23 id. 283; Welch v. Seymour, 28 Conn. 387; Mayor v. Horn, 2 Harr. 190; City Council of Montgomery v. Hughes, 65 Ala. 201; Chelmsford v. Demarest, 73 Mass. 1; Rany v. The Governor, 4 Blackf. 2; Wapello v. Bigham, 10 Iowa 39; Murfree on Official Bonds, § 620, et seq.)

Whether the bond in the present case is an official bond, limited in duration to the term of the officer, is to be gathered from the language employed in the instrument and the statute under which it was given. The first two sections of the act under which the bond was given, provide for the incorporation of mutual life insurance associations; and § 3 provides that the persons named in the articles of incorporation shall be the directors for the first year, and they are to complete their organization by electing a president and vice-president from among their number, and a secretary and treasurer. The directors and officers are required to be elected annually; and § 4 provides that after each annual election the directors are to take their oaths of office and forward the same, together with the names of the officers elected by them, to the...