Kentucky Mutual Security Fund Company v. Turner, &C.

• Decision Date: 06 March 1890
• Parties: Kentucky Mutual Security Fund Company v. Turner, &c.
• Court: Kentucky Court of Appeals

89 Ky. 665

Kentucky Mutual Security Fund Company v. Turner, &c.

Court of Appeals of Kentucky.

March 6, 1890.

APPEAL FROM LOUISVILLE LAW AND EQUITY COURT.

MARC MUNDY FOR APPELLANT.

SAME COUNSEL IN PETITION FOR REHEARING.

W. O. HARRIS FOR APPELLEES.

JUDGE BENNETT DELIVERED THE OPINION OF THE COURT.

The appellant issued to William A. Turner, now deceased, a certificate of membership in its company, by which it agreed to insure his life for the benefit of the appellees. Said insurance was on the mutual benefit plan, and entitled the appellees, upon the death of said William A. Turner, provided he kept his premiums and mortuary assessments paid up, to receive pay from the appellant, not exceeding three thousand dollars, provided the mortuary assessments on the policies then in force, according to the graduated plan as provided in a table attached to said policy, would amount to as much as three thousand dollars.

It is alleged, and not denied, that said William A. Turner, in his life-time, complied with all the requirements of said certificate, and, consequently, the appellees were entitled to the benefits of the same; and they had made proper proofs of death, and had presented the same to the appellant, accompanied with a demand of payment; and the appellant had paid eight hundred dollars and two hundred and two dollars and twenty-nine cents, but had refused to pay the balance of said sum of three thousand dollars. The appellees also alleged that they did not know whether the appellant had made the assessments upon the holders of certificates then in force for the purpose of paying said policy in full; but if it did make said assessment, it yielded more than enough to pay said three thousand dollars. The appellees called upon the appellant to state the number of members it had at the time it should have made the assessment, and the amount that was assessed on each, and that was realized, or should have been realized, for the benefit of the appellees. The appellant, in its answer, does not state the number of members it had liable to assessment, nor the amount that each member was assessed for the purpose of paying said policy. It says that it did make assessments on all of the holders of certificates then in force, according to the table of graduated assessment rates, for the purpose of paying the appellees' and eight other certificates; that the fund raised by said assessments was paid pro rata on said certificates, the appellees' pro rata amounting to the above-named credits, which was all that they were equitably entitled to receive.

It will be seen that it is alleged, in substance, that there were members enough in said company holding live certificates, had they been assessed according to the graduated plan of assessment, to have paid the maximum amount of the appellees' policy, and the appellant is called upon to state the number of members subject to assessment, and the amount of the same. The appellant failed to answer this interrogatory, but stated that it did...