Elkhart Mut. Aid v. Houghton

• Decision Date: 17 October 1885
• Citation: 2 N.E. 763,103 Ind. 286
• Parties: Elkhart Mut. Aid, Etc., Ass'n v. Houghton.
• Court: Indiana Supreme Court

103 Ind. 286

2 N.E. 763

Elkhart Mut. Aid, Etc., Ass'n

v.Houghton.¹

Supreme Court of Indiana.

Filed October 17, 1885.

Appeal from Starke circuit court.

J. M. Vanfleet and Geo. W. Beeman, for appellant.

John S. Bender, for appellee.

Zollars, J.

Appellee's right to recover rests upon two certificates of membership issued by appellant. These certificates are in legal effect policies of insurance upon the life of James Mitchell. So far as concerns any question involved in this case, the rules of law which govern ordinary policies of insurance are applicable here. Appellee declared upon these certificates, and made them a part of his complaint. In each of them appellee is named as the payee and beneficiary. The portions of each of the certificates necessary to be set out here are as follows: “This certifies that James Mitchell has paid ten dollars, the amount required on application, and has covenanted and agreed to pay $1.50 as an assessment upon the death of any member, or the maturity of any certificate. He is therefore and hereby constituted a member, and entitled to participate in the benefits, of the Elkhart Mutual Aid Benevolent Relief Association. * * * This certificate entitles James E. Houghton, his heirs or assigns, within ninety days after presentation of satisfactory proof of the death of said member, to one thousand dollars, or so much thereof as may be realized from one assessment, not exceeding one thousand dollars, payable at the home office of said association, in the city of Elkhart. * * * (7) This association will hold no reserved fund, and all losses will be paid from moneys derived from mutual assessments.”

The complaint avers the death of James Mitchell, the proof of his death, and the refusal of appellant to pay the amounts named in the certificates, or any part thereof, and its refusal to order or make any assessment upon the members of the association to raise the required sum, or any part of it.

The complaint is not assailed upon the ground that it shows the invalidity of, or fails to show the validity of, the certificates as policies of insurance upon the life of James Mitchell, in favor of appellee as beneficiary. The sole objection urged to the complaint is that it does not state the number of the members of the association against whom assessments might be made to raise the money with which to pay in full or in part the amounts named in the certificates. The contention is that the complaint does not make a case without the averment that there are such members, and a statement of the number of them. Appellant has not only refused to pay the amounts named in the certificates, but has also refused to make any assessment. So the complaint alleges. Under these averments, admitted to be true by the demurrer, appellee is entitled to a money judgment against appellant. The certificates each provide that upon the death of the assured appellee is entitled to $1,000, or so much as may be realized from one assessment, etc. The undertaking in each certificate is for $1,000, unless an assessment will not produce that much. That an assessment would not produce $2,000, we think, is a matter of defense to be set up by appellant. It would be difficult, if not impossible, for appellee to know how many members of the association there are. The books of the association doubtless show the number. These books are in the possession and custody of the officers of the association. If the members are such, in number, that an assessment would not produce $2,000, that fact is known to the officers of the association, and they should set it up in an answer, and make good the answer by proof, as they readily could, if true. This, we think, is the reasonable rule to apply in a case like this, and especially where, as here, the insurer contests the claim upon other grounds, and utterly refuses either to pay or make an assessment. We are aware that there are authorities against, as well as in support of, the rule we here adopt.

The case of Lueders' Ex'r v. Hartford L. & A. Ins. Co., 4 McCrary, 149, S. C. 12 Fed. Rep. 465, supports our view to the full extent, and we content ourselves with a citation of that case, and one case by this court. Lueders, in his life-time, held five certificates of insurance similar to those in suit, which provided that in case of the death of the holder an assessment should be made upon all other certificate holders to pay the amounts named in the certificates, and that, not to exceed one thousand dollars, the amount named in each certificate should be paid upon such certificate. It was contended in that case that the executor of Lueders should aver and prove the number of outstanding certificates. In answer to this contention, McCrary, J., among other things, said: “It is best known to the company who and where are the certificate holders, and if plaintiff's rights to a judgment on a disputed loss are to be limited by the number of, etc., of outstanding certificates, it would seem that defendant should set up the limit as to the number, etc., lapsed, or otherwise. * * * Despite decisions to the contrary, this court cannot hold otherwise than that when suit has to be brought the recovery should be for the maximum insured, unless the defendant shows by pleadings and proof that said sum should be reduced.” See, also, Excelsior Mut. Aid Ass'n of Anderson v. Riddle, 91 Ind. 84.

Our holding that the complaint makes a case for a recovery of the full amount of the certificates until something is pleaded and proven to reduce that amount, disposes of appellant's contention that the judgment for $2,000 is too large. It is not beyond the complaint, and we cannot say that it is too large upon the evidence, because the evidence is not before us.

The only other alleged error argued by counsel is the giving of the fifth instruction by the court below. It is as follows: “Much has been said about an insurable interest in the life of another. Upon this question, as a matter of law, I instruct you that a grandson with whom a grandfather resides has an insurable interest in the life of the grandfather; and a policy of insurance taken out by the grandfather in favor of the grandson, in the absence of fraud, is valid and binding on the company issuing it.” It is well settled that a single instruction must be considered as a whole, and is not to be dissected and overthrown because an isolated part, when thus wrenched from its proper connections, may seem to be erroneous. McDermott v. State, 89 Ind. 187. It is well settled also, that where the evidence is not in the record, the judgment will not be reversed on account of an instruction, if, upon any state of the evidence which might properly have been before the jury, the instruction would have been correct. In such a case it will be presumed that the instruction was applicable to the evidence. Keating v. State, 44 Ind. 449;Northwestern Mut. L. Ins. Co. v. Heimann, 93 Ind. 24;Dennerline v. Gable, 73 Ind. 210;Stratton v. Kennard, 74 Ind. 302;Drinkout v. Eagle Machine Works, 90 Ind. 423;Wade v. Guppinger, 60 Ind. 376;Higbee v. Moore, 66 Ind. 263;Powers v. State, 87 Ind. 144.

The fair interpretation of the instruction complained of, taken as a whole, and the one a jury would be most likely to put upon it, is, we think, that if a grandfather procures an insurance upon his life in favor of a grandson, with whom he lives, the grandson will have such an insurable interest in the life of the grandfather as that the policy will not be invalid, in the absence of fraud, and, as applied to this case, that the grandson may maintain an action upon the policy. Thus interpreted, the instruction clearly does not enunciate an erroneous proposition of law. And in the state of the record, it...