LONG
J.
This is
an action of assumpsit brought under section 4225
How. St., to recover money paid defendant as agent of the
Fraternal Alliance, a corporation organized under the laws of
the state of Illinois. Suit was commenced by summons before a
justice of the peace of St. Joseph county. The declaration
was on the common counts in assumpsit. Plea, general
issue, with notice of special matters of
defense. Plaintiff recovered judgment in a justice's
court. Defendant appealed to the circuit court for St. Joseph
county, where the cause was tried before the court without a
jury, and defendant had judgment for costs. On the trial the
court found the following facts and conclusions of law
" First. That the Fraternal Alliance is a
corporation organized under the laws of the state of
Illinois, and that it was so organized on or about the 30th
day of September, A. D. 1885, and is located in the city of
Chicago and county of Cook. Second. That the charter
or articles of association of said corporation declares that
the object for which it is formed is to establish a secret
order, which shall cultivate social and fraternal relations
among its members, and furnish aid to those of them that may
become sick or disabled; no annual dues or premiums to be
required, and all aid and assistance to be by voluntary
contributions. Third. That said association
proceeded to organize a supreme body under such charter,
known as the 'Supreme Council of the Fraternal
Alliance,' a social order, and adopted a constitution and
by-laws for its government. Fourth. That said
association entered upon its use and exercise of its
privileges, and has continued to use and exercise them,
receiving initiation fees and dues, and paying losses and
benefits. Fifth. That on or about the 15th of June,
1886, by virtue of said association and supreme council, at
Chicago, a subordinate council, known as 'No. 32,'
was organized at Three Rivers, in said county of St. Joseph,
with a membership at one time of about 90 persons, among whom
was the plaintiff and defendant in this suit; that said
council No. 32 was organized by the appointment of a
chairman, a deputy, and a board of managers; that the
defendant was such deputy, and as such it was his duty to
secure members of said Fraternal Alliance order, and to
receive and remit to the said association
at Chicago the monthly dues or voluntary contributions of the
members, and one dollar of each initiation fee, of the
remaining four dollars of such initiation fee, was to be paid
to the examining surgeon, and three dollars retained by the
deputy for his services. Sixth. That
on the 29th day of September, 1886, the plaintiff became a
member of said Council No. 32, and of said order of Fraternal
Alliance, and received a certificate of membership, which
recited, among other things, that in consideration of a
voluntary contribution of one and 50 one-hundredth dollars to
the funds of said order, to be made on or before the 25th day
of each and every month during the continuance of this
membership, Henry Augustus Rensenhouse shall, after the
expiration of sixty days from the date of this certificate,
when temporarily disabled from prosecuting his usual vocation
by reason of sickness or disability, be entitled to receive
from the benefit fund of the order a weekly benefit of twelve
and 50 one-hundredth dollars. The certificate contains a
further provision that, in the case of the death of the
plaintiff, the wife may continue to make voluntary
contributions, for the purpose of participating in the
equalization of benefits at the end of seven years, or in
lieu thereof receive, within fifteen days after furnishing
proof of death, the amount contributed by said member to the
benefit fund of the order, less the amount of benefits
received by him. Seventh. That the plaintiff paid to
the defendant, as deputy or agent of said association, an
initiation fee of $5.00, and his monthly dues for nine
months, from the 25th day of October, 1886, to the 25th of
June, 1887, of one and 50 one-hundredth dollars each month, a
receipt being given at the time of each monthly payment of
dues in form following, viz.: 'Received of H. A.
Rensenhouse, Council No. 32, certificate No. 319, one and 50
one-hundredth dollars, as his voluntary contribution to the
funds of the order of the Fraternal Alliance for the month of
October, 1886. H. B. CHANDLER, Secretary. I. W. SEELEY,
Deputy.' Eighth. That said Fraternal Alliance
deposited the moneys paid to it for dues and other voluntary
contributions with the Corn Exchange Bank of Chicago, and
that the defendant remitted to said bank the dues received by
him from said plaintiff, and such part of the membership fee
not retained by him for the purposes before stated.
Ninth. That at the time of the commencement of this
suit the said Fraternal Alliance was doing business in the
state of Michigan, but not by virtue of or under any authority granted or issued to it by the
commissioner of insurance of said state, and at the time the
said money was paid by the plaintiff to the defendant, and
before this suit was commenced, the treasurer of the state of
Michigan had no deposit from the said Fraternal Alliance, as
is contemplated by section 4225, How. St. That after the
formation of said corporation, the Fraternal Alliance, the
officers thereof applied to the commissioner of insurance
aforesaid for license or permission to do business in this
state, if he deemed it such a company as required a license
or permission, and said commissioner never granted any
license or permission, alleging as a reason that he did not
consider it to be such a corporation as was required, under
the laws of this state, to have any license or permission
granted. Tenth. This action was brought to recover
the money paid by the plaintiff to the defendant for his
voluntary contribution or monthly dues to the Fraternal
Alliance, and the amount paid by him to become a member
thereof, in all the sum of eighteen and 50 one-hundredth
dollars." Conclusions of law: " First.
That the said Fraternal Alliance is not a life insurance
company, within the meaning of section 4225, How. St., in
requiring a deposit of one hundred thousand dollars
securities with the state treasurer, nor is it an insurance
company, within the designation of section 4244 of said
Statutes, and amendments thereof, requiring a like deposit.
Second. The moneys paid by the plaintiff, which he
now seeks to recover, were voluntary contributions or
payments made by him as a member of the order of the
Fraternal Alliance to the defendant as a member and officer
of such association, and he cannot maintain this action to
recover them
back. Third. The defendant should have judgment
against the plaintiff for his proper costs and charges. NOAH
P. LOVERIDGE, Circuit Judge." Judgment was entered in
said court on the above findings, on the 27th day of
February, 1888. Afterwards, and on the 20th day of March,
1888, the said court, on the request of counsel for
defendant, made the following as an additional finding in the
cause: "The Fraternal Alliance is a fraternal society,
which is under the supervision of a supreme
body, and furnishes relief to its members by the payment to
them of weekly sums while they are disabled, by reason of
sickness, from carrying on their usual business, and that it
neither pays commissions nor employs any paid agents, the
moneys which are paid by its members as a membership fee
being the only money used for the payment of its medical
examiners, solicitors, and others engaged in the management
of its business; that said Fraternal Alliance is not
incorporated under any act of this state." Exceptions
were filed to these findings. Plaintiff brings the case to
this court by writ of error.
It
appears that in September, A. D. 1885, this corporation was
formed under the laws of the state of Illinois. The
management of its affairs is placed in a board of seven
directors, and its object, as stated in its articles, is
"to establish a secret order, which shall cultivate
social and fraternal relations among its members, and furnish
aid to those of them that may become sick or disabled; no
annual dues or premiums to be required, and all aid and
assistance to be by voluntary contributions." It is
contended by defendant's counsel that this company is not
an insurance company, within the statutes of this state, but
that it is a fraternal order, and chartered as such under the
laws of the state of Illinois, and that its business is
carried on in accordance with its charter, and the plan set
forth in its constitution and by-laws, and the certificate of
membership; that the object of the association is not
speculative, but social and benevolent, in its relations
furnishing aid to those that may become sick or disabled, and
that only indirectly does it pay a death loss. The only
important question involved in the controversy is, is it, in
effect, a life insurance company, within the meaning of
chapter 131 of Howell's Statute? Section 4225 of said
chapter 131 reads as follows: "No company organized or
existing under any authority whatsoever, other
than the statutes of this state shall be at liberty to
transact the business of life insurance within this state
until such company, in addition to the requirements now made
by law, shall have deposited with the state treasurer one
hundred thousand dollars of the like securities required to
be deposited by companies formed under this act, which shall
be held as security for any losses," etc. This...
