Simmons v. Mutual Reserve Fund Life Ass'n, 128 N.C. 469 (1901)

June 4, 1901 · Supreme Court of North Carolina

128 N.C. 469

SIMMONS v. MUTUAL RESERVE FUND LIFE ASSOCIATION.

(Filed June 4, 1901.)

1. INSURANCE — Contract — Mutual Benefit Associations — Vested R-ghts

A mere general consent by a member of a mutual benefit association to the amendment of its by-laws and constitution does not authorize such a change as will destroy his vested rights.

2 INSURANCE — Vested Rights — Recovery of Premiums — Remedy.

Where a mutual benefit association violates its contract, the most practical remedy of a member is to bring action for the premiums paid, with interest thereon.

W. W. Glarh, T. B. Womack, and Simmons & Ward, for the plaintiff.

Hinsdale & Lawrence, and Shepherd & Shepherd, for the defeuidianit.

Douglas, J.

This is an action brought to recover the assessments which the plaintiff, E. G. Simmlons, has paid the defendant on a contract of insurance which the plaintiffs allege has been unlawfully cancelled -by the defendant. Viewed in the light of the original contract, the facts of this dase seem to bring it within the prinaipO.es decided in Strauss v. Life Association, 126 N. C., 971, and on rehearing at this term. It seems'that the plaintiffs on November 10, 1895, commenced an action based on the alleged breach of the original contract) which termimalted in 'a compromise agreement darted October 31, 1896. What might have been the proper construction of that compromise, or its legal effect, is not before ns, as it seems to have been repudiated by both parties. This being so, the panties are relegated to their former contract. Even if the second contract were otherwise in force, it has been admittedly violated by the defendant, who can not be allowed to “approbate and reprobate” tbe same instrument in 'the Siam© breath. Such being the case, we see no error in the judgment of the Court below.

Affirmed.