Majority
p. 279William Emmeluth, Resp’t, v. The Home Benefit Ass’n, App’lt.[1] (Court of Appeals, Second Division, Filed October 7, 1890.)
Headnote
1. Insurance (life)—Construction of policy—“ Share and share.”The words “ share and share alike” are words of severance, and create a several right, especially when considered in the light of the fact that the consideration was several.
2. Same—Parties.
Defendant issued a policy of life insurance to one D. Sandford, “for the benefiit of D. Sanford, self, and the surviving members of Five Thousand Club ‘I,’ limited to ten members, whose certificates remain in force, share and share alike,” etc. Sandford died, and plaintiff, as one of the surviving members, brought an action for his share of the §5,000. Held, that the action to recover the share of plaintiff was properly brought in his name alone.
Appeal from a judgment of the general term of the supreme court, in the second judicial department, affirming a judgment of the special term overruling a demurrer to the complaint.
Action upon a certificate issued by a co-operative insurance corporation organized under chap. 175 of the Laws of 1883.
The plaintiff by his amended complaint alleges the corporate
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character of the defendant, and that December 8, 1884, in consideration of the annual premium of ten dollars, to it paid by-Daniel Sandford, it issued its policy of insurance, whereby it “ agreed to pay to the sister of said Sandford, and to this plaintiff, and the surviving members of the Five Thousand Club,’ 1/ within ninety days after receipt ” of proofs of the death of said Sandford, the sum of $5,000 “to the surviving members of said club, limited to ten members, share and share alike.” The certificate, which is made a part of the complaint, states that in consideration of certain representations and agreements, and of the membership fee paid, “ D. Sandford is an accepted member * * * of the Home Association, * "*" * for the benefit of D. Sand-ford, self, and the surviving members of Five Thousand Club ‘I,’ limited to ten members, whose certificates remain in force, share and share alike, unless said member * * * substitute some other beneficiary,” or if he should survive such beneficiary, then for the benefit of the legal heirs of said member.
The contract further provides that the member is required to pay a gross sum annually, together with assessments when made, and that upon his death while said certificate is in force there shall be payable to said beneficiary or beneficiaries the sum of $5,000.
The certificate is made subject to various conditions relating to assessments, conduct, excluded risks, etc.
The complaint further alleges that on December 8, 1884, the defendant in consideration of the annual payment of ten dollars issued its policy of insurance to the plaintiff as a member of said club, “ limited to ten members,” for the benefit of his wife, “ in case of his death, and the surviving members of said ” club and that he “ is one of the surviving members of said club and entitled to his share in the benefits thereof and his policy remains in full force and effect”
The complaint contains the usual formal allegations as to death, proofs of loss and the collection of an assessment from the members of the assciation to the amount of $5,000, which is still held by the company,'and that since the death óf said Sandford, “ Stafford Gay and S.’ Gay, two of the members of said club, 11 ’ have withdrawn, leaving eight members of said Five Thousand Club ‘I’ entitled to receive their share of said $5,000.” The remaining allegations relate to formal compliance by Sandford and the plaintiff with the conditions of insurance.
The defendant demurred upon the ground that no cause of action was set forth and because there is a defect of parties plaintiff “in that if plaintiff has any interest in either of the contracts referred to in said amended complaint * * * such interest is a joint interest with one or more other persons and no reason is assigned for the non-joinder of said persons as. parties plaintiff.”
Francis Lawton, for app’lt; Norman A. Lawlor, for resp’t.
It appears from the complaint that ten persons designated as members of Five Thousand Club “ I ” limited to ten,, each procured a certificate of insurance from the defendant.
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While this is not expressly alleged, it necessarily follows from the allegations that the club was limited to ten members, each with a certificate in force, and the withdrawal of two thereof, “ leaving eight members of said Five Thousand Olub 11 ’ entitled to receive their share of said $5,000.”. One of the certificates is specifically set forth and another generally, and from the former, issued to Daniel Sandford, it appears that an annual premium and such assessments as should be made were payable by him to the defendant, and that upon his death there was payable from the defendant to him or his representative, and to the other members of the club, the sum of $5,000, “ share and share alike.” According to the contract Mr. Sandford was empowered to designate & beneficiary to receive the one-tenth or such other fractional part as otherwise would be payable to him. Whether he did this or not, is unimportant in this action, which relates simply to the share of the plaintiff, but some confusion is produced by the allegation in the complaint that the defendant, by its contract with Sandford, promised to pay the amount of the policy, when due, to the sister of said Sandford, and to the plaintiff and the other members of the club. The contract, however, which is set forth in haec verba, does not mention the sister, and the complaint can conform to the contract in this regard only upon the theory that he had designated her as his beneficiary. Whether he had or not does not affect the plaintiff, as in either event his fractional part would be the same. The certificate issued to the plaintiff, so far as it is set forth, is like that issued to Mr. Sandford, and presumptively the certificates of the other members of the club were the same, as it distinctly appears that membership depended upon a certificate in force. The form of those certificates, however, is not here important, because it appears from the certificates of the plaintiff and Mr. Sandford, that the interest of each of those persons was several, as it was founded on a separate consideration and an independent contract, and the promise, as alleged, was to pay to the members or their designated beneficiaries, share and share alike. The action follows the nature of the interest, and when that is several separate actions may be maintained, even if the language of the promise is joint Hees v. Nellis, 1 T. & C., 118; Van Wart v. Price, 14 Abb., 4 , note; Warner v. Ross, 9 Abb. N. C., 385 ; Shaw v. Sherwood, Cro. Eliz., 729; Eccleston v. Clipsham, 1 Saund., 153; Withers v. Moore, 3 B. & C., 254; Addison on Contracts, vol. 1, p. 79; Parsons on Contracts, vol. 1, p. 11.
The words “ share and share alike ” are words of severance and create a several right, especially when considered in the light of the fact that the consideration was several. As the language of the promise is not expressly joint- but, to say the least, may be construed to be joint or several, it should according to the authorities cited be held several, because the interest of the promisees is several.
The action to recover the share of the plaintiff was, therefore, properly brought in his name alone.
Some confusion is also created by the allegation that the certifi
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cate of the plaintiff is for the benefit of his wife, but that is only in case of his death, and this action is not founded upon the certificate issued to the plaintiff, but upon that issued to Mr. Sand-ford. The only importance of setting forth the former at all is to show that the plaintiff is a member of the club. There is clearly a cause of action alleged.
The judgment should be affirmed, with costs.
All concur, except Brown, J., absent.