Opinion
04-22-1895
BRADBURY v. MUTUAL RESERVE FUND LIFE ASS'N.
John Griffin, for complainant. J. Frank Fort, for defendant.
(Syllabus by the Court.)
Bill by John Bradbury against the Mutual Reserve Fund Life Association to restore complainant to his standing and pecuniary rightsin the defendant association. Heard on demurrer to the bill. Demurrer overruled.
John Griffin, for complainant.
J. Frank Fort, for defendant.
PITNEY, V. C. The object of the bill la to restore complainant to his standing and pecuniary rights in the defendant association, which he says he has temporarily lost by failing to pay his bimonthly dues on the precise day upon which they came due. Two points are made against the bill: First, that it fails to show facts entitling complainant to relief; second, that complainant's remedy is by mandamus.
The bill is somewhat meager in its statements—so much so that complainant's counsel suggested an amendment. Without determining whether it is sufficient in its present shape, I will consider it as if amended as suggested. Read in that way, it sets out that defendant is a mutual assessment life association, duly incorporated under the laws of New York, in which certificates of membership are given in particular sums, which entitle the holder, or his personal representatives, to the payment of that sum upon his death. The statement, in effect, is that the certificate does not, like an ordinary life insurance policy, contain the terms of the contract between the association and the complainant, but is a mere certificate of his membership, including the extent of his interest, resembling in that respect a certificate of stock in an ordinary corporation. The contract proper is found in the constitution and rules of the association, which require the member to make certain annual payments for the purpose of meeting the expense of operation, and, in addition, certain bimonthly payments or assessments, called "mortuary calls," which last constitute the fund proper, from which death payments are made. The bill states that, as an inducement to complainant to become a member, it was represented to him by the officers of the association, in such a manner as to become a part of the terms of the contract of membership: "A member who lapses his certificate may reinstate the same at any time within one year, for good cause shown, and upon satisfactory evidence of good health, and upon payment of ail delinquent dues and assessments,"—and that "the mortuary premiums, unless paid half-yearly or yearly, in advance, are due and payable every two months, viz. February, April, June, August, October, and December, and if not paid within thirty days from the first week days of said months the policy will lapse, but may be revived at any time, within twelve months from date of lapse, on presentation of a health certificate satisfactory to the association, and payment of all arrears of premium." And the constitution provides that "the executive committee shall have power to reinstate a delinquent member at any time within a year, for good cause shown, and upon satisfactory evidence of good health, and upon payment of all delinquent dues and assessments."
Complainant purchased a certificate of membership in 1883, to the extent of $1,000, and paid all his dues thereon up to and including August, 1893. On October 1, 1893, a mortuary call of $2.57 was made by the association upon him, payable November 1, 1893, which he was unable to pay, for a cause which is not set out with particularity, but which I shall assume will, upon actual amendment, appear to be a good cause, and that he made default, but that three days afterwards he procured the necessary sum, and on November 4, 1893, duly called at the office of the association, and applied for reinstatement, and offered to pay the August dues, and that he subjected himself to examination as to the state of his health, and was examined by a medical examiner of the association, and that the defendant declined to reinstate him, on the ground, as I infer (though it is not so stated), that he was not in a proper state of health. Then follows this statement: "And your orator further shows unto your honor that he is in good health and has been examined by prominent physicians in the city of Jersey City, who have made a thorough examination of him, and pronounce him in good health, and a first-class, insurable risk, and he has tendered himself ready and willing to submit to a medical examination of competent physicians as to whether or not he is in good health, and forms a good, insurable risk; and the said defendants have refused to comply with such reasonable request, and decline to take, as satisfactory evidence of good health, the certificate of any physician, excepting such as are employed by them, and fraudulently refuse to reinstate your orator, well knowing that your orator is in good health, and forms a proper subject of insurance,, according to their rules and regulations." And then this allegation: "And your orator tenders himself ready and willing to pay the dues and assessments accrued, and to submit to the examination of physicians, to give satisfactory evidence to said association that he is in good health, and forms a proper, insurable risk, according to their rules and regulations, under the direction of this honorable court." The prayer is that defendant may be decreed to reinstate complainant to membership. Upon this allegation, I must assume that complainant, at the date of his failure (November 1, 1893), and subsequent tender (November 4, 1893), was in fact in good health, and a fit person to be Insured, and that he fully met the requisitions of the contract above set out. If so, 1 can see no ground for the refusal to restore him. It is well settled, as I suppose, that no person has a right to refuse, arbitrarily, to be satisfied with that which in justice he ought to be satisfied with, because it is intrinsically satisfactory. If A. contract to construct for B. a carriage of a particular quality and description, to the satisfaction of B.,and does in point of fact construct such a carriage, of the particular quality and description provided for in the contract, B. cannot escape payment by simply declaring that he is not satisfied with it. He is bound to be satisfied with it. I think, therefore, the complainant has shown a right to be reinstated, upon terms, of course, of proving that he was in such state of health, and of paying the arrears of dues.
Next as to his remedy by mandamus: It is well settled that mandamus is an extraordinary writ, and does not lie where there is another legal remedy. Mr. High properly defines it as a command directed to some corporation, officer, or inferior court, requiring the performance of a particular duty, which results from the official station of the party to whom the writ is directed, or from operation of law. And see Bac. Abr. tit. "Mandamus"; Bailey v. Oviatt, 46 Vt. 627. Originally it was resorted to for the purpose of reinstatement of membership only in public or municipal corporations, but has of late been extended to membership in certain classes of private corporations. High, Extr. Rem. § 204; Sibley v. Carteret Club, 40 N. J. Law, 295. That was a case where the prosecutor had been unlawfully removed from membership in an ordinary social club, of which the membership, like that in an ordinary medical society, or a chamber of commerce, or a religious corporation, has no intrinsic money value, but its value depends upon the personal use of the privileges of membership. No case was cited to me, nor have I found any, where it was ever resorted to for the purpose of restoring a party to membership in an Incorporated association, like that here in question (which, as I view it, does not differ materially from an ordinary mutual life insurance company), nor where the prosecutor had not been removed, but had lost his right by a simple failure to perform something on his part, and where something was to be done as a condition precedent to his restoration. The real question is as to the intrinsic character of the right which has here been infringed. Is it one resting in private contract, for whose breach the party has his remedy either by action at law, for damages, or in equity, for specific performance? If such be its character, and the matter ultimately involved is money,, merely, then the party has no standing to ask for the prerogative writ of mandamus. This seems to be the acknowledged rule. The common-law procedure act of 1854, S 68, enlarged the use of the writ of mandamus in England by declaring that the plaintiff should be entitled to that writ, "commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested." Under that act, distinguished counsel applied to the court of queen's bench for a writ to be directed to a landlord, commanding him to execute a lease of lands pursuant to a written contract Benson v. Paull, 6 El. & Bl. 273. Lord Campbell, in denying the writ, said that the statute did not extend to the fulfillment of duties arising merely from personal contract. To the same effect were the judgments of the other judges who sat with him. The authorities in this country are to the same effect. In Parrott v. City of Bridgeport, 44 Conn. 180, the application was for a mandamus to compel the city to construct part of a certain street in a particular and special manner, for the especial benefit of the applicant, whose right to have it so constructed depended upon a special contract entered into by the city with the applicant. At page 182 the court says: "The duty, therefore, if any, which rests upon the city in this regard, is one which it owes to the petitioner as an Individual, not to the public, and the special contract is the foundation upon which it rests. But the writ of mandamus has never been considered as an appropriate remedy for the enforcement of contract rights of a private and personal nature, and obligations winch rest wholly upon contract, and which involve no questions of public trust or official duty. Indeed, strictly speaking, it never lies where the party aggrieved has adequate remedy at law, and its aid is only to be invoked to prevent an absolute failure of justice, in cases where ordinary legal processes furnish no relief." The learned judge cites State v. Zanesville & Maysville Turnpike Road Co., 16 Ohio St. 308, and State v. Howard County Court, 39 Mo. 375. In the latter case the supreme court of Missouri refused a mandamus asked for by a military recruit who was entitled to a bounty offered by the county for volunteers, on the ground that his right rested entirely in contract. In Bailey v. Oviatt, supra, a writ of mandamus was refused which was asked for by a legislative investigating committee, to be directed to the stenographer employed by the committee, commanding him to write up his notes of the evidence given to the committee in the course of its duties. In the course of its opinion the court says, "The writ can be used only to compel the discharge of duties imposed by law, as distinguished from duties imposed by contract merely." And see High, Extr. Rem. §§ 25, 28; Spelling, Extr. Relief, § 1379. Apgar v. Trustees, 34 N. J. Law, 308, is not discordant with this rule. There the mandamus was directed to the trustees of a school district, commanding them to perform an official and ministerial duty imposed upon them by statute, viz. to give the applicant an order on the township collector for the amount of her salary duly earned as a teacher in the public school; the order to be paid out of public moneys in the collector's hands, devoted to that particular purpose. In the course of his opinion the learned judge says: "The true test by which to determine the right of a party suing for a mandamus is— First, whether he has a clear legal right; and, secondly, whether there is any otherappropriate specific remedy to enforce that right. This writ can be invoked only where no other adequate remedy exists, to prevent the failure of justice. It cannot be appealed to where the end sought to be attained can be otherwise accomplished, and was never designed to be applied to the mere collection of debts." Turning now to the case in hand, I find nothing in it other than the contractual relations between an ordinary mutual life insurance company and the special individual members of which it is composed. The incorporated association agrees, in consideration of certain periodical payments, to pay the personal representative or nominee of the member a certain sum of money at his death. There is here no present, current, social, or professional benefit to the member attached to his membership, nor is he subject to any continuing conditions of personal behavior, conduct, or qualification, such as we find in memberships in religious, benevolent, or other social organizations, or in medical or other scientific societies. The right to the prospective benefit of his membership has been lost, not by any breach of the rules of personal conduct, but by failure in a matter of contractual duty,—to pay money on the day fixed by the contract,—and his right to be restored to his contractual rights depends upon a clause or clauses in the contract which entitle him to such restoration upon certain conditions, which I have found he either performed, or is ready to perform. This view shows clearly enough that the case is not a proper one for mandamus, but is one for specific performance in this court.
This result is sustained by the adjudged cases. In Cohn v. Insurance Co., 50 N. Y. 610, relief was prayed in equity, and was resisted, inter alia, on the ground that mandamus was the proper remedy, but the contrary was adjudged. This ruling was followed in Meyer v. Insurance Co., 73 N. Y. 516. To the same effect are Day v. Insurance Co., 45 Conn. 480, and Insurance Co. v. Pottker, 33 Ohio St. 459, at pages 464, 465. The demurrer should be overruled, without costs.