Fraternal Beneficiary Association. Contract. Pleading, Civil, Declaration. Words, "Loss of an arm."
If the holder of a certificate of a fraternal beneficiary association is entitled to an indemnity of a definite sum of money under the terms of his certificate payable out of a disability assessment levied upon the members of the association, he may recover the amount in an action of contract against the association for a breach of its implied agreement to levy the assessment.
In an action against a fraternal beneficiary association for a failure to levy a disability assessment out of which an indemnity is payable to a member under the terms of his certificate of membership, the cause of action is a breach of contract, and allegations in the declaration as to bad faith, fraudulent purpose and unlawful action on the part of the defendant do not make it a declaration in tort or in contract or tort.
The amputation of an arm about four inches below the elbow is the loss of an arm within the meaning of a certificate of a fraternal beneficiary association agreeing to indemnify the holder for such a disability.
BARKER, J.
1. Both before and since the statement in Burdon v. Massachusetts Safety Fund Association, 147 Mass. 360, that under a policy like that now in suit, "it may be that an action at law would lie; but the more appropriate remedy would be by a proceeding in equity to compel the association to lay the assessment," actions at law have been entertained in our courts upon similar policies. The fact that a plaintiff at law has another remedy in equity to which he might resort is not, commonly at least, a defence to his action at law. We think the policy sued on contains an implied contract on the part of the defendant that under the circumstances alleged it will levy an assessment, and that sufficient facts are alleged in the declaration to show a breach of that contract and that upon the admission as true of the allegations the plaintiff is entitled to judgment for the sum of $2,500.
2. The declaration is in contract, and the allegations as to bad faith, fraudulent purpose and unlawful action on the part of the defendant make it neither a declaration in tort nor a declaration having one count in contract and one in tort.
3. We consider the amputation of an arm a little below the elbow to be the loss of an arm in the common acceptation of those words and within their meaning as used in the policy, which specifies merely the "loss of an arm" without mentioning whether the loss is by amputation below or above the elbow joint.
In our opinion the demurrer should have been overruled, and the case is remanded to the Superior Court with directions to reverse the order sustaining the demurrer and to enter an order overruling it.
So ordered.