Union Mutual Accident Ass'n v. Frohard , 1889 Ill. App. LEXIS 343 ( 1889 )

Garnett, P. J.

Appellant is a corporation organized under the law of this State, for the purposes of carrying on the accident insurance business. It insures its members against death or disability from external, violent and accidental causes only.

On the first day of September, 1885, John Frohard was accepted as a member of the association, and on that date a certificate or policy of insurance was issued to him. In this certificate it is provided “ that John Frohard, by occupation, profession or employment, a merchant, residing at Sparta, State of Illinois, is accepted as a member in division ‘A’ of said association, subject to all the requirements, and entitled to all the benefits thereof, as provided in the by-laws, and that said member, in case of death occurring through external, violent and accidental injuries, is entitled to participate in the mortuary or relief fund of the association, not to exceed the amount of 85,000, which sum, or such part thereof as may be collected for that purpose by the payment of one regular assessment of two dollars ($2) for each member of the association liable at the date of the accident, shall, within sixty (60) days after sufficient proofs have been received, be paid to his wife, Minna, if surviving. * * * It is expressly stipulated and agreed that in the event of the member being either fatally injured or otherwise disabled while engaged temporarily or otherwise in any act or occupation classed as more hazardous than the one in which he is accepted, according to the classification given by the rates and by-laws of this association (or if not specifically mentioned, approximating thereto) then an amount shall be paid equal to the rate of the occupation in which the member is engaged when receiving the injury, and such amount shall be payment in full upon the part of the association. * * * It is expressly stipulated and agreed that this certificate is issued and accepted subject to all the provisions, conditions, limitations and exceptions herein contained or referred to.”

On January 28, 1887, the insured went hunting with a gun, and while climbing a fence accidentally shot and killed himself. Proofs of death having been made, and the sixty days having elapsed without payment, suit in equity was brought by the beneficiary named in the policy to compel appellant to levy an assessment of $2 for each member of the association liable at the date of the accident, for the purpose of paying the amount specified in the policy, or such part thereof as might be collected on the assessment. There was also a prayer for general relief. The answer alleged that the insured was killed by the discharge of a gun while hunting, and that hunting was an occupation classed by the association as more hazardous than the one in which the insured was accepted as a member of the association, and that by virtue of its by-laws appellee was only entitled to receive $500, which had been tendered. On the hearing the court directed the levy of the assessment and the payment of the amount thereof to complainant, and in case the sum collected should be less than $5,000, the association and its proper officers were decreed to pay complainant the difference between $5,000 and the amount so realized from the assessment. By stipulation of the parties it appears that the number of members liable to assessment at the date of the accident was more than enough to make $5,000 by one assessment, if the members all paid.

The act of hunting is not equivalent to the occupation of hunting. The case of W. A. Life and Accident Ins. Co. v. Burroughs, 69 Pa. St. 43, furnishes a close analogy on this point. See, also, Stone’s Adm’rs v. U. S. Casualty Co., 34 N. J. 375. The classification of hazards in appellant’s by-laws is confined to occupations. They do not profess to classify acts. Until the act is classed as more hazardous than the occupation in which the insured was accepted as a member, he may engage therein temporarily for exercise or recreation without reducing the amount of risk incurred by the association. The terms are made by the company; the by-laws and certificates are framed in language chosen by itself, and it must be presumed to have made all the exceptions to its liability that it deemed desirable. The court must follow the general rule of construction, and interpret the policy liberally in favor of the insured. May on Ins., Sec. 175; Stone’s Adm’rs v. U. S. Casualty Co., supra.

In this case the association refused to make an assessment as it had undertaken to do by its contract with the deceased^ and it now says that the decree should not have ordered payment of the full sum of $5,000, because it is uncertain what amount can be realized from the assessment. But to whose fault is the uncertainty chargeable ? The appellee could not make the assessment, and appellant wrongfully refused to make it, and fails entirely to make any showing by pleading or proof as to the amount that can be collected from the members liable at the date of the accident. If this contention of appellant is sustained, the value of the policy in question might now be greatly diminished, on account of inability to collect from those liable to assessment when the death happened. If any such change has taken place, it is not just that the loss should fall upon appellee, when appellant alone is to blame. Newman v. Cov. Ben. Ass’n, 40 N. W. Rep. 91, 92.

The authorities say that the burden is on appellant to prove that an assessment would not realize the full sum insured. Until proof on that point is made, the stipulation showing enough members to raise the $5,000, the presumption is that the entire amount of the insurance could be collected. Northwestern B. & M. A. Ass’n v. Warner, 24 Ill. App. 363; Neskern v. N. W. E. & L. Ass’n, 30 Minn. 406; Elkhart Mut. Aid Ass’n v. Houghton, 103 Ind. 286; Kansas Protective Union v. Whitt, 36 Kans. 760; Freeman v. Nat. Ben. Soc., 42 Hun, 252; Lueder’s Ex’rs v. Hartford L. & A. Ins. Co., 12 Fed. Rep. 465; Cov. Mu. Ben. Ass’n v. Hoffman, 110 Ill. 603.

If appellant had diligently proceeded in the execution of its contract by levying an assessment and making all reasonable efforts to collect the same, a different case would be presented; but as it has denied its liability for any sum over $500, and wilfully refuses to perforin its contract, it is only right that it should be required to pay any deficiency arising from failure to collect the assessment.

That part of the decree directing payment of the deficiency by the proper officers of the association is nugatory (no officer thereof being a party to this suit), and is no ground for assignment of error. The decree is affirmed.

Deoree affirmed.