Kimball v. Lower Columbia Fire Relief Ass'n of Oregon

• Decision Date: 21 October 1913
• Citation: 135 P. 877,67 Or. 249
• Parties: KIMBALL v. LOWER COLUMBIA FIRE RELIEF ASS'N OF OREGON et al.
• Court: Oregon Supreme Court

135 P. 877

67 Or. 249

KIMBALL v. LOWER COLUMBIA FIRE RELIEF ASS'N OF OREGON et al.

Supreme Court of Oregon

October 21, 1913

Department 2.

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Suit in equity by E.M. Kimball against the Lower Columbia Fire Relief Association of Oregon and others. From a decree granting the relief prayed for, defendant appeals. Modified, and decree entered for plaintiff.

This is a suit to compel specific performance of a contract of insurance. The Lower Columbia Fire Relief Association is a voluntary co-operative mutual benefit association, organized for the purpose and engaged in the business of insuring the property of its members against loss or damage by fire, and the other defendants are its officers and directors, having charge of its business and full authority to act for it. On the 15th of September, 1909, the association issued to plaintiff, who is a member of said association, a contract of insurance, signed by the president and secretary of the association, whereby, in consideration of the sum of $15 and of the promise of plaintiff to pay his ratable proportion of all assessments made for loss or damage by fire or lightning the association agreed to insure his flouring mill against loss or damage by fire to the extent of $2,000 for a period of two years, and also agreed that in case of such injury it would, through the agency of the board of directors, levy an assessment as provided by its constitution and by-laws for the purpose of paying such loss. The insured property was totally destroyed by fire on April 21, 1911, causing plaintiff a loss of $5,370, which was duly proved and adjusted as required by the certificate of insurance. Thereupon, as plaintiff had complied with all the conditions of his policy, he demanded that the officers of the association proceed to levy and collect from the members of the association the assessment necessary to pay his loss, as required by the by-laws of the association and by the said contract of insurance, which plaintiff avers they neglect and refuse to do. Plaintiff also alleges that the association has no reserve fund nor any other means of paying said loss except by such assessments, and that he has no plain, speedy and adequate remedy at law. There was a prayer for judgment against the association for $2,000, with interest from June 21, 1911, and that the directors be required to specifically perform their contract by levying an assessment sufficient to pay the said sum and for further equitable relief. The defendants appear generally and demur to the complaint: (1) Because there is a defect of parties defendant; and (2) because the complaint does not state facts sufficient to constitute a cause of suit. The demurrer was overruled, and the defendant electing not...