Gossett v. Union Mutual Accident Ass'n

Garnett, J". The plaintiff in error filed her decharation in assumpsit against defendant in error, on a certificate of membership, or policy of insurance. There were three special counts in addition to the common counts. The first special count declared upon a certificate of membership issued to Thomas F. Gossett, alleging the defendant agreed, for a valuable consideration named, to pay to plaintiff the principal sum (not to exceed $5,000), represented by the payment of $2 by each member of the defendant association, as provided in the by-laws thereof, in case of the death of said Thomas by external, violent and accidental means. The second count is similar to the first, except that it describes the instrument sued on as a policy of insurance. The third count declares upon a policy of insurance for $5,000, which, for. aught we can see, is an ordinary accident policy. In all three of these special counts there are sufficient allegations of the death of the assured in the manner specified in the policy, proofs of death' and demand of payment; and in the first and second counts allegation is made of a membership in said association sufficient in number so that a payment by each member of two dollars would produce $5,000. A copy of the certificate sued on was attached to the declaration. The defendants filed a general demurrer to the declaration, which was sustained by the court. Judgment was rendered for the defendant on the demurrer, and plaintiff seeks to reverse the same by this writ of error. That the court erred in sustaining the demurrer to a declaration which included the common counts, is too plain to need argument or citation of authority. We can only account for the action of the court by supposing the counsel to have confined their argument to the special counts, as they have done in this court. In his brief, the counsel for defendant makes two erroneous assumptions. He takes it for granted that the copy of the instrument attached to the declaration is a part of the declaration. That is a mistake. See Bogardus v. Trial, 1 Scam. 63; Harlow v. Boswell, 15 Ill. 56. Therefore the third special count is entirely sufficient on its face. The other error committed by counsel is in supposing that the certificate sued on provides that the member “ is entitled to participate in the mortuary or relief fund of the association, not to exceed the amount of §5,000, which sum, or such part thereof as may be collected for that purpose by the payment of one regulan assessment of two dollars from eah member of the association, liable at the date of the accident, shall, within sixty days after sufficient proof,” be paid to the beneficiary. We find no such provision in any of the special counts, or in the copy of the instrument sued on. But the entire argument for the defendant is based on these two erroneous assumptions. The contract set out in the first and second counts is to pay to the plaintiff the principal sum (not exceeding $5,000) represented by the payment of §2 by each member in the association. That is certain which can be rendered certain. The extent of the defendant’s liability is measured by §2 for each member, the total not to exceed §5,000. The first and second counts alleged that the membership was sufficient to make §5,000 by a payment of §2 eacb. They thereby reduced to certainty that which would have been uncertain had no such allegation been made. Neskern v. N. W. End. & Leg. Ass’n, 30 Minn. 406; Kansas Protective Union v. Whitt, 14 Pacif. Rep. 275. The special counts are each sufficient on their face. For the errors herein indicated the judgment of the Circuit Court is reversed and remanded. lieversed and remanded.