Oriental Insurance v. Glancey

Irving, J., delivered the opinion of the Court.. This is an action of assumpsit based upon a certificate of membership in a mutual life insurance company. The certificate is not fully set out in the declaration hut is referred to as numbered 183. The declaration alleges, that it promises to pay five hundred dollars upon the death of the insured, Mrs. McG-inty, to one Michael ¹⁰³ G-lancey, upon compliance with certain conditions, during the life of Mrs. McG-inty, which conditions are alleged to he set out in the certificate and application therefor.

These conditions are averred to have been complied with, and the death of the assured is alleged to have occurred, hut the defendant is alleged to have neglected and refused to pay the five hundred dollars insurance money. The certificate and application for it are not, by profert, made part of the declaration. Had they been made part of the record, under the authority of Curtis vs. Mutual Benefit Life Co., 48 Conn., 98 , which was approved in Earnshaw vs. Sun Mutual Aid Society, 68 Md., 465 , the judgment could properly he arrested because of the variance between them and the narr. But not having been made part of the record, the motion was properly overruled.

Indeed they might have been excluded as evidence for the same reason, hut no objection seems to have been made to them as evidence, and on that score there is nothing for us to review. The hill, of exceptions presents hut one question, namely, the correctness of the Court’s action in rejecting the defendant’s prayer, which was the only prayer offered at the trial. That prayer is as follows : “If the jury shall find for the plaintiff, their verdict can he for such an amount only as they may find would have resulted from the collection of an assessment at the time of the death of Mrs. McGinty, and the division of the proceeds among all the beneficiaries -entitled pro rata, according to the face of their policies after deducting from the sum collected such sums as they shall find the company entitled to deduct for the expense fund according to the terms of the policy.” By the express terms of the agreement between the parties, as stated in the application which is made a part of the certificate, it was stipulated “that all suits shall only he for the benefit of an assessment ¹⁰⁴ made by the proper officers of the association.” It was