Murphy v. Mutual Reserve Fund Life Ass'n

• Decision Date: 19 March 1902
• Docket Number: 10,020
• Parties: MURPHY v. MUTUAL RESERVE FUND LIFE ASS'N.
• Court: United States Circuit Court, District of Indiana

114 F. 404

MURPHY v. MUTUAL RESERVE FUND LIFE ASS'N.

No. 10,020

United States Circuit Court, D. Indiana.

March 19, 1902

Rowland Evans, for plaintiff.

Guilford A. Deitch, for defendant.

BAKER District Judge.

The plaintiff has interposed a demurrer to the second, third, and fourth paragraphs of the answer of the defendant. The suit is upon a certificate or contract of insurance on the life of John W. Murphy for the benefit of his wife, Ann E. Murphy. The certificate was executed December 8, 1884, and the assured died on July 15, 1900. Due proof of death was properly made. The amended complaint avers due performance of all the conditions of the certificate by the assured. The certificate, a copy of which is made part of the amended complaint, provides that:

'In further consideration of the dues for expenses to be paid on or before the 8th day of December in every year during the continuance of this certificate, and of the further payment of all mortuary assessments payable at the home office of the association, in the city of New York within thirty days from the first week day of the months of February, April, June, August, October and December of each and every year during the continuance of this certificate (or from such other periods as the board of directors may from time to time determine), and within thirty days from the day of the date that each assessment is ordered, the Mutual Reserve Fund Life Association, from and after the delivery hereof, with a receipt for the payment of the first annual dues, signed by the president, secretary, or treasurer of the association, does hereby receive John W Murphy, of Indianapolis, county of Marion, state of Indiana, as a member of said association.'

The certificate contains no agreement or statement of the amount of annual dues for expenses, nor of the amount of the bimonthly mortuary assessments. There is found indorsed upon the certificate, but constituting no part of the written contract, a statement that the annual dues for expenses are limited to $2 for each $1,000, payable annually, in advance. There is also indorsed thereon an 'assessment rate table,' showing the rate of assessments on each $1,000, commencing with the age of 15 years, and ending with the age of 65 years. The answer consists of a general denial, and of three special paragraphs in confession and avoidance. The second paragraph admits the execution of the certificate of insurance, and that it was issued to the plaintiff's husband, and it further avers:

'That the consideration for said policy was the application for membership, the admission fee paid, and dues for expenses to be paid on or before the 8th day of December in every year during the continuance of said policy, and of the further payment of all mortuary assessments payable at the home office of the defendant, in the city of New York, within thirty days from the first week day of the months of February, April, June, August, October, and December of each and every year during the continuance of said policy. A copy of said certificate is filed with the amended complaint herein, and is hereby referred to, and made a part of

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