Kentucky Mutual Security Fund Co. v. Turner , 89 Ky. 665 ( 1890 )

JUDGE BENNETT

dbliykrkd thb opinion of the court.

The appellant issued to William A. Turner, now deceased, a certificate of membership in its company, by which it agreed to insure his life for the benefit of the appellees. Said insurance was on the mutual benefit plan, and entitled the appellees, upon the death of said William A. Turner, provided he kept his premiums and mortuary assessments paid up, to receive pay from the appellant, not exceeding three thousand ■dollars, provided the mortuary assessments on the policies then in force, according to the graduated plan ns provided in a table attached to said policy, would amount to as much as three thousand dollars.

It is alleged, and not denied, that said William Á. Turner, in his life-time, complied with all the requirements of said certificate, and, consequently, the appellees were entitled to the benefits of the same; and they had made proper proofs of death, and had presented the same to the appellant, accompanied with .a demand of payment; and the appellant had paid eight hundred dollars and two hundred and two dollars and twenty-nine cents, but had refused to pay the balance of said sum of three thousand dollars. The appellees also alleged that they did not know whether the appellant had made the assessments upon •the holders of certificates then in force for the purpose of paying said policy in full; but if it did make said assessment, it yielded more than enough to pay •said three thousand dollars. The appellees called upon the appellant to state the number of members it had at the time it should have made the assessment, and •the amount that was assessed on each, and that was realized, or should have been realized, for the benefit of the appellees. The appellant, in its answer, does not state the number of members it had liable to assessment, nor the amount that each member was assessed, for the purpose of paying said policy. It says that it did make assessments on all of the holders of certificates then in force, according to the table of graduated assessment rates, for the purpose of paying the appellees’ and eight other certificates; that the fund raised by said assessments was paid pro rata on said certificates, the appellees’ pro rata amounting to the above-named credits, which was all that they were equitably entitled to receive.

It will be seen that it is alleged, in substance, that there were members . enough in said company holding live certificates, had they been assessed according to the graduated plan of assessment, to have paid the maximum amount of'the appellees’ policy, and the appellant is called upon to state the number of members subject to assessment, and the amount of the same. The appellant failed to answer this interrogatory, but stated that it did make assessments to pay this and eight other policies, and the same aggregated the sum of twenty-nine thousand five hundred dollars, which' was equitably prorated among the nine policies. These allegations did not respond to the interrogatories and the allegations of the petition in reference to that matter. Besides, the allegations of the answer in reference to said matter are wholly evasive. It is not stated what amount was assessed to pay the appellees’ policy, or what amount was assessed to pay either of the other policies, • or what was the amount of either policy. The statement that the appellees received as much as they were equitably entitled to receive was a mere conclusion of the pleader. It is certain, according to the allegations of the pleadings, that no certificate could have been issued for an amount exceeding three thousand dollars, but could have been issued for a less amount; and presuming that each of the nine certificates called for three thousand dollars as the maximum amount, the aggregate sum would be twenty-seven thousand dollars, and the answer admits that twenty-nine thousand five hundred dollars was assessed on said deaths, apparently enough to pay the maximum sum of each certificate in full. Why only eight hundred dollars was the appellees’ pro rata is not explained. Also, the appellant, as far as appears from the pleadings, had no right to prorate the sum raised by the assessments. The appellees, as far as appears from the pleadings, were entitled' to an assessment on all the members subject to it for the purpose of paying the amount of their policy, and each of the others was entitled to an assessment for the same purpose, and it was not right to prorate the sums thus raised among the beneficiaries.

The appellant relies upon the agreement contained in the policy, not to bring suit on the same after the lapse of one year from the death of the insured, as a bar to the appellees’ action; and the same having-been brought after the lapse of one year from the death of the insured, it should have been dismissed. The death of the insured was proven, and the appellees’ claim was presented to the appellant for acceptance and payment within said year, and the appellant •accepted it, and agreed to pay it within said time, and did actually pay a part of it. It is well-settled that parties may make a binding agreement as to the time in which an action shall be brought for a violation of their contract, which agreement will have the same effect as the statutory period of limitation in such cases. It is well-settled' that a partial payment on a demand takes the case out of the statute of limitations as to the balance of the demand, and the statute as to said balance commences to run only from the day of said payment. A contract limitation is governed by the same principle, and the partial payment will take the case out of the agreed period of limitation, and the same will commence to run again irom the time of said payment.

The action was brought in equity, and the appellant contends that it ought to have been brought at law, consequently a court of equity had no jurisdiction of it, and the same should have been dismissed. It is sufficient to say that the Civil Code has changed the old chancery rule upon that subject. By said Code, it is the duty of the court not to dismiss the action, but, on the motion of the defendant, when he files his answer, or on the court’s own motion, to transfer it to the proper docket or court. The plaintiff may also move said transfer. And if neither party moves to transfer it, and it is not transferred on the court’s motion, it is the duty of the court to render judgment according to the rights of the parties. Neither of the parties made a motion to transfer, nor was a transfer ordered by the court; instead, the court rendered judgment for the full amount claimed. This was right.

The judgment is affirmed.