Wagner v. Kolodny
| Decision Date | 18 May 1917 |
| Docket Number | No. 9266.,9266. |
| Citation | 116 N.E. 91,64 Ind.App. 510 |
| Parties | WAGNER et al. v. SUPREME LODGE, K. P. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marion County; Charles R. Remster, Judge.
Action by Albert H. Wagner and others against the Supreme Lodge, Knights of Pythias. Judgment for defendant, and plaintiffs appeal. Reversed, with directions.Guilford A. Deitch and Frank G. West, both of Indianapolis, for appellants. Ward H. Watson, of Indianapolis, James E. Watson, of Rushville, and Sol H. Esarey, of Indianapolis, for appellee.
This is an action by appellants against appellee to recover on a certificate of insurance issued to George M. Wagner, Sr., father of appellants, on May 25, 1885, for the sum of $1,000.
Demurrers were filed by appellee to the second and third paragraphs of amended complaint and were sustained by the court. To such rulings appellants excepted, refused to plead over, and elected to stand on the rulings of the court. Thereupon the court rendered judgment that plaintiffs take nothing by this action and that the defendant recover its costs. From this judgment appellants appealed, and have assigned as separate error the sustaining of each of the demurrers aforesaid.
The substance of the second paragraph of complaint as far as material here is as follows: On May 25, 1885, appellee's predecessor issued to George M. Wagner, Sr., father of appellants, plaintiffs below, a certificate of membership by which it promised to pay appellants $1,000 on the death of said George M. Wagner, Sr.; that thereafter said obligation was assumed by appellee.
The certificate set out in the complaint states:
That said Wagner received the endowment rank of the order of Knights of Pythias in section No. 3 on December 10, 1877, and is a member in good standing. That in consideration of the surrender of the certificate previously held by him and his application for the transfer to the fourth class, dated April 29, 1885, the payment of the admission fee, and the further consideration of the payment hereafter of all monthly payments as required and compliance with all the laws governing this rank now in force, or that may hereafter be enacted, the insurer will pay to the beneficiaries the sum of $1,000 upon his death while in good standing in said rank.
That the insured died on May 12, 1913, and plaintiffs are his children. That written notice of death was duly given on June 3, 1913, and defendant waived proofs of death by denying liability on receipt of notice for the reason that the insured permitted his membership to lapse. That defendant is estopped to claim a forfeiture on the following grounds: That defendant's constitution in section 1 of article 4 provides that:
“Each member of the endowment rank shall on presenting himself for obligation pay to the secretary of the section in accordance with his age and the amount of endowment applied for, a monthly assessment as provided in the following table, and shall continue to pay the same amount each month thereafter as long as he remains a member of the endowment rank.”
That under said table said Wagner was required to pay a monthly assessment of $3.60, which amount he paid “up to the time his said certificate of membership was forfeited as hereinafter more fully alleged.” That prior to August 10, 1910, the defendant ascertained that the members of the fourth class were old and their certificates were rapidly maturing. That in August, 1910, a meeting was held by defendant company for the purpose of forcing old members of the fourth class to withdraw from the society and permit their certificates to lapse, notwithstanding the provisions of the constitution and of the certificate of membership issued to such members as aforesaid, and notwithstanding the provision that said Wagner might maintain his membership on payment of $3.60 per month, and that the insurer should not be liable at his death for more than the amount produced by “one payment to the endowment fund by each member holding an equal amount of endowment.” That without right and in violation of its contract with said Wagner, and without his consent, the defendant amended its constitution so as to provide among other things the following:
“Every member of the fourth class of the insurance department at the time when this statute takes effect and who continues his membership until December 31, 1910, shall pay a monthly payment for each month thereafter beginning with the month of January, A. D. 1911, monthly payments in accordance with his attained age and occupation and the amount provided for in his certificate, on January 1, A. D. 1911, as fixed by the table herein, unless and until otherwise provided by enactment of the Supreme Lodge.”
That by the table last above mentioned rates were established and promulgated, the first number indicating the age and the second the amount to be paid, as follows: 21, $1.40; 25, $1.55; 30, $1.75; 35, $2; 40, $2.30; 45, $2.80; 50, $3.45; 55, $4.25; 60, $5.40; 65, $6.95; 70, $9.15; 75, $12.35; 82, $20.15. That at the time such amendment was adopted said Wagner, Sr., was 82 years of age, and he was thereby required to pay the sum of $20.15 instead of $3.60 for each monthly assessment; that the rates of assessment so fixed by the defendant in 1910 were unreasonable,arbitrary, illegal, and void, in this, that they discriminated against the older members of the society and in favor of its younger members by burdening the older members of the society with a greater loading of the expenses of the society than was placed on the younger members.
The complaint then sets out a table, using the ages above set forth, and shows: (1) The cost of insurance at the different ages under the laws of the society as amended in 1910; (2) the net premiums on $1,000 of insurance according to the American Experience Tables of Mortality at 3 1/2 per cent.; and (3) the element of expense or loading for each $1,000 of insurance per annum included by the rates established and promulgated by the assessment laws enacted in 1910, based on the American Experience Tables of Mortality, 3 1/2 per cent., as follows:
+---------------------------+
¦Age.¦(1) ¦(2) ¦(3) ¦
+----+-------+-------+------¦
¦21 ¦$ 16.80¦$ 13.77¦$ 3.03¦
+----+-------+-------+------¦
¦25 ¦18.60 ¦15.10 ¦3.50 ¦
+----+-------+-------+------¦
¦30 ¦21.00 ¦17.19 ¦3.81 ¦
+----+-------+-------+------¦
¦35 ¦24.00 ¦19.91 ¦4.09 ¦
+----+-------+-------+------¦
¦40 ¦27.6O ¦23.50 ¦4.10 ¦
+----+-------+-------+------¦
¦45 ¦33.60 ¦28.35 ¦5.25 ¦
+----+-------+-------+------¦
¦50 ¦41.40 ¦34.99 ¦6.41 ¦
+----+-------+-------+------¦
¦55 ¦51.00 ¦44.13 ¦6.87 ¦
+----+-------+-------+------¦
¦60 ¦64.80 ¦56.83 ¦7.97 ¦
+----+-------+-------+------¦
¦65 ¦83.80 ¦74.65 ¦8.75 ¦
+----+-------+-------+------¦
¦70 ¦109.80 ¦99.84 ¦9.96 ¦
+----+-------+-------+------¦
¦75 ¦148.20 ¦135.07 ¦12.53 ¦
+----+-------+-------+------¦
¦82 ¦241.80 ¦223.63 ¦18.17 ¦
+---------------------------+
It is also alleged: “That the net annual premium for insurance represents the sum which will be required upon table of mortality and interest taken, less expenses to meet all policy claims as they mature.” “That the loading is that part of the premium added to the net premium to defray expenses of the insurer.” That on the - day of December, 1910, the defendant demanded of said Wagner, Sr., $20.15 in payment of the assessment for the month of January, 1911, and notified him that unless the sum of $20.15 was paid as his assessment for January, 1911, his certificate of membership would be lapsed and he would be suspended from all benefits thereunder and his membership would be terminated. That said Wagner, Sr., refused to pay said increased assessment, for the reason that the amount demanded was in excess of the amount for which he was liable under his contract with the defendant, and for the reason that such assessment was unreasonable, in this, that it discriminated against him and in favor of the younger members of the society by charging him with a greater amount of expenses of the society than was charged against the younger members; that he was ready, willing, and able then and at all times to pay the assessment for which he was liable, to wit, the sum of $3.60 for each monthly assessment, and would have tendered that amount, but defendant notified him that it would not be received for the assessment for January, 1911, if tendered, and that such amount on the old basis would not be received in payment of any assessment in the future. That upon the refusal of said George M. Wagner so to pay said unlawful and excessive assessment for the month of January, 1911, the defendant declared his certificate lapsed, and suspended him from membership and declared his certificate forfeited for nonpayment of such assessment. That thereafter said Wagner notified the defendant that he at all times had been and was then ready and willing to pay the full amount due from him at the rate of $3.60 per month and interest on any delinquent payments. That said Wagner, Sr., and plaintiffs have each and all performed all of the conditions of the contract of insurance on their part to be performed, but defendant has failed and refused to perform its part...
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Funk v. Stevens
...would receive only $ 366 on a $ 1,000 certificate. The court held that the member had a vested right in the amount of his certificate. In the Wagner case the organization undertook to make aged members pay an increased amount for the cost and expenses of investigating and adjusting death cl......