Himmelein v. Supreme Council American Legion of Honor

Citations

• 4 Cal. Unrep. 173
• 33 P. 1130
• 1893 Cal. LEXIS 1045

Syllabus

<p>Mutual Benefit Insurance—Action on Certificate.—An application for membership in a benefit society, and statements of the applicant to the medical examiner, both of which are on file in the office of the secretary of the society, and are referred to in the benefit certificate, and made part of the contract, need not be set out in the complaint in an action on the certificate. Cowan v. Insurance Co., 78 Cal. 181, 20 Pae. 408, followed.</p> <p>Mutual Benefit Insurance—Action on Certificate.—In an action on a benefit certificate, by which defendant promised “to pay out of its benefit fund to [plaintiff] a sum not exceeding $500,” the complaint after setting out the certificate alleged that “by the terms and conditions of the said contract the said defendant promised to pay to the plaintiff, out of its benefit fund, the sum of $5,000”; that the memher had performed all the conditions of the contract; “and that said sum of $5,000 is now due and owing from the said defendant to this plaintiff.” Held, that the complaint sufficiently stated a cause of action for $5,000.</p> <p>Mutual Benefit Insurance.—A Provision in a Benefit Certificate, that it shall be payable only on its surrender, is waived where the benefit society refuses to pay solely on the grounds of nonpayment of assessments, and that another beneficiary had been substituted.</p> <p>Mutual Benefit Insurance.—In an Action on a Benefit Certificate, by the terms of which the claim was not due until proof of death was furnished, interest will be allowed only from the commencement of the' action, where the complaint merely states that proof of death had been made, without showing when, and the findings only show that the proof was made “before the commencement of this action.”</p>