Eberhard v. Northwestern Mut. Life Ins. Co., 2956.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Citation: 241 F. 353
• Docket Number: 2956.
• Parties: EBERHARD et al. v. NORTHWESTERN MUT. LIFE INS. CO.
• Decision Date: 09 April 1917

241 F. 353

EBERHARD et al.
v.
NORTHWESTERN MUT. LIFE INS. CO.

No. 2956.

United States Court of Appeals, Sixth Circuit.

April 9, 1917

[241 F. 354]

H. J. Turney, of Cleveland, Ohio, for appellants.

W. C. Boyle, of Cleveland, Ohio, for appellee.

Before WARRINGTON and DENISON, Circuit jUdges, and HOLLISTER, District judge.

HOLLISTER, District Judge.

This case was here before (No. 2624) on appeal by complainants in the District Court (appellants also in this appeal) from an order of that court sustaining a demurrer to their bill. What took place at the hearing of the appeal is shown by the mandate of this court of July 3, 1915, which recites:

'And counsel for appellants here and plaintiffs below having in oral argument admitted, and rightly, that the bill is too broad in averments and in scope of relief sought insisting, however, that plaintiffs were entitled to some without defining what, portion of the relief prayed-- therefore, in order to afford plaintiffs opportunity to state such case as they shall be advised is open to them and without intimating whether a case can in any form (and whether or not of representative character) be maintained in the court below for any of the objects stated in the bill, it is ordered that the decree below be and it is reversed, without costs; and, in accordance with the practice in situations similar to that of the plaintiffs (Wiggins Ferry Company v. Railway, 142 U.S. 396, 413-415 (12 Sup.Ct. 188, 35 L.Ed. 1055); 3 Foster, Fed. Pr. 2136), the case is remanded with direction to permit plaintiffs to amend the bill-- provided, the amount involved in the case be specifically alleged and appear to be sufficient for jurisdictional purposes.'

Thereupon, complainants having obtained leave in the District Court, filed an amended bill, differing from the original in no essential respect, and practically a copy of it, excepting the omission of the several prayers for injunction. The bill and the amended bill show: Complainants, three in number, several others intervening, are each the holder of a semi-tontine insurance contract or policy for the sum of $3,000, all of the policies having been issued at different dates by the Northwestern Mutual Life Insurance Company, a corporation of Wisconsin; under the plan of insurance, a policy-holder surviving its term and having paid all premiums is entitled to share in a fund created by the excess premiums paid over the cost of insurance and by the amounts paid in by policy holders who do not survive the terms of their respective policies, or who forfeit their policies or right of participation in the fund by nonpayment of premium.

The bill and amended bill, filed in behalf of complainants and of all others similarly situated, charged that the fund, amounting to millions, was held in trust by the company for all holders of similar policies, and that, in various ways alleged, the fund had been diverted by the company and its officers to purposes inconsistent with the tontine policy holders' rights.

The prayer in both was for the intervention of equity, because of no adequate remedy at law; for an accounting; for a receiver of the fund, if it be found the trust should be terminated; and the original [241 F. 355] bill prayed also for injunction against certain acts not now important for consideration.

Defendant moved to dismiss the amended bill on several grounds going to the merits of the case, as well as because of want of capacity in complainants to maintain the suit, and because the amended bill did not show that the sum sought to be recovered was sufficient to confer...