Passenger Conductors' Life Ins. Co. v. Birnbaum

• Decision Date: 03 October 1887
• Docket Number: 178
• Parties: THE PASSENGER CONDUCTORS' LIFE INS. CO. v. BIRNBAUM
• Court: Pennsylvania Supreme Court

11 A. 378

116 Pa. 565

THE PASSENGER CONDUCTORS' LIFE INS. CO. v. BIRNBAUM

No. 178

Supreme Court of Pennsylvania

October 3, 1887

Argued January 14, 1887

An opinion, reported in 19 W.N. 277, affirming the judgment of the court below in this case, was filed on March 21, 1887 but afterwards withdrawn.

ERROR TO THE COURT OF COMMON PLEAS NO. 3, OF PHILADELPHIA COUNTY.

No. 178 July Term 1886, Sup. Ct.; court below, 387 December Term 1884, C.P. No. 3.

The action was in assumpsit by Sarah F. Birnbaum, widow of Charles N. Birnbaum, deceased, against The Passenger Conductors' Life Insurance Company of the United States. The declaration averred --

In the first count: That Charles N. Birnbaum was a member of defendant company, and that defendant, for a sufficient consideration, "did promise, agree and undertake to and with the said Charles N. Birnbaum, . . . that if he, said Charles N. Birnbaum, should die, being still a member of defendant company and intestate, that then and in such case defendant should and would pay to the widow of said Charles N. Birnbaum, a certain sum of money, to wit, $3,200." . . That Charles N. Birnbaum died intestate, a member of defendant company, and that plaintiff is his widow.

In the second count: That "defendant . . . did agree, promise and undertake . . . to and with Charles N. Birnbaum, the then husband of plaintiff, for a sufficient consideration, that if he, said Charles N. Birnbaum, should die without having disposed by his will of the money, to wit, $3,200, which was to be paid on his death, . . . then said defendant should and would pay, or cause to be paid, unto the plaintiff the said $3,200, provided said Charles N. Birnbaum had fulfilled his duties as set forth in the constitution and by-laws of defendant company," averring the fulfillment of his said duties by said Charles N. Birnbaum, his death intestate, and that plaintiff was his widow, etc.

In the third count: A promise the same as in the first count, and averring that Charles N. Birnbaum had fulfilled his duties and that he had endeavored to fulfill his duties as a member of defendant company, but was prevented by the act of the defendant.

The defendant pleaded non assumpsit to the first and second counts and demurred to the third count, and for cause showed that said third count was inconsistent with itself, alleging full performance by the decedent and then alleging matter of excuse for non-performance; also that the count avers matter of evidence, and in other respects is informal and uncertain. This demurrer was overruled, and the defendant then pleaded to this count, "non assumpsit."

On the trial the plaintiff put in evidence the constitution and by-laws of defendant, and the certificate of membership of Charles N. Birnbaum, deceased. It was admitted that the deceased was the husband of the plaintiff and died May 12, 1883. The defendant company was incorporated by act of March 14, 1871. Its secretary was then called by the plaintiff and testified that the deceased, on April 1, 1883, had been marked as a delinquent upon the company's books upon assessment No. 117, made January 1, 1883, upon the death of R.L. Skinner. At the meeting of December 5, 1882, the secretary submitted to the board of directors the notice he had received of the death of R.L. Skinner. The proofs of death not having arrived, the board directed the chairman of the board to examine them when they should arrive, and if found correct, he, the secretary, was to make the assessment and issue notices. The proofs afterwards came, were examined by the chairman of the board of directors, who found them correct, approved them, and assessment No. 117 was made accordingly. There was no other meeting of the board until March, 1883. The plaintiff's husband did not pay assessment No. 117, nor did he pay two other assessments, Nos. 118 and 119, made February 1, 1883, upon the deaths of two other members. On May 12, 1883, the number of members was about 807.

By the constitution of the defendant company its "members shall only be conductors of passengers or mixed passenger and freight trains." By the by-laws, it is made the duty of the board of directors "to order an assessment of two dollars per member for the benefit of the person or persons entitled to receive such assessments upon the death of any member." And the by-laws provide further:

When the death of a member of this company occurs, notice must be sent to the president and secretary, also a certificate from the attending physician, sworn to before a notary public, justice of the peace, or a clerk of a court of record, which must state the cause, time and place of death; also a notice of who, as representative of the decedent, is entitled to receive the benefits, giving the full name of such person, whether executor, widow or administrator. No assessment to be ordered by the board of directors, until the provisions of this section are complied with.

Upon the receipt of the proof of the death of a member as hereinbefore provided, the secretary shall submit said proof to the board of directors, and with their approval shall make the assessment, copies of which shall be sent to each corresponding member for the members on his road or division, and to each member not belonging to a road or division having such corresponding member.

Each member shall, upon receipt of notice of an assessment, forward to the secretary and treasurer, or pay over to corresponding member the sum of two (2) dollars for the benefit of the person or persons entitled to receive the same on account of the death of a member; such money to be forwarded or paid over in time to be received by the secretary and treasurer within ninety (90) days of the date said assessment has been made.

At the expiration of ninety (90) days from the date of assessments, the secretary and treasurer shall pay over such amounts as may have been collected on such death assessments to the party or parties entitled to receive the same, and said party or parties shall receipt for the amount so received, and release the company from any further liability.

All assessments must be received by the treasurer within ninety (90) days after notice thereof shall have been sent by the treasurer to the corresponding member of each road or division, and to each member not belonging to a road or division having such corresponding member. The corresponding member is the agent of the individual members of his road or division, and this company shall not be liable for the omission of a corresponding member to notify the individual members of his road or division of any assessment, or for his omission to remit amounts collected by him for such assessments; and no assessment shall be considered as having been paid until actually received by the treasurer, whose receipt shall be the only evidence of such payment.

In case the assessment due by any member shall not have been paid by him and received by the treasurer within ninety days after notice of its assessment shall have been sent by the treasurer to the corresponding member of the road or division to which such member may belong (or in case such member does not belong to a road or division having a corresponding member, then within ninety days after notice shall have been sent by the treasurer to such member), then such person shall immediately cease to be a member of this company, and shall immediately forfeit all the rights, privileges and benefits thereof.

The conduct or action of any officer or agent of this company shall not be construed as having waived, changed, or modified any of the provisions of this article.

At the close of plaintiff's case the defendant asked for a nonsuit on the ground that the plaintiff had shown no cause of action, which motion was refused. No points were submitted and the court charged the jury:

[The evidence establishes the membership of deceased, at the time of his death. Under the constitution of defendant, thereupon it was the duty of the company to order an assessment, which it did not do. It would require an assessment of two dollars upon each member, and it is as if the assessment on plaintiff's death had been made. The defence is that defendant was delinquent in not having paid assessment No 117, heretofore...