Opinion
No. 7,065.
Submitted April 29, 1933.
Decided June 2, 1933.
Foreign Corporations — Mutual Benefit Societies — Recovery Back of Illegal Assessments — Jurisdiction — Pleading — Conclusions of Law — Complaint — Sufficiency — Assignment of Causes of Action. Courts — What Constitues Jurisdiction — How Called into Activity. 1. In order to bring jurisdiction — the power to hear and determine a cause — into activity, there must be a complaint containing facts constituting a wrong for which redress may be had under the law, and to warrant exercise of such power the parties defendant must be before the court either as a result of the service of process or by voluntary appearance. Same — Jurisdiction — Waiver. 2. While failure to raise the question of jurisdiction over one's person at the earliest opportunity results in a waiver of his right in that behalf, the question of jurisdiction over the subject matter of an action is never waived; consent in that respect cannot give jurisdiction. Insurance — Mutual Fraternal Benefit Corporations — What Constitutes Contract Between Insurer and Insured. 3. The benefit certificate issued by a mutual fraternal life insurance corporation and the applicable provisions of its constitution and by-laws constitute the contract of insurance between insured and insurer. Pleading — Complaint — When Sufficient. 4. The allegations of a complaint are sufficient if a cause of action is stated upon any theory. Foreign Corporations — Controversies Relating to Internal Management of Affairs of Corporation — State Courts Without Jurisdiction. 5. Where the act complained of by a stockholder of a foreign corporation or a member of a mutual benefit association affects the plaintiff solely in his capacity as a stockholder or member, it is one done in the management of the internal affairs of the corporation or association and the courts of this state will not assume jurisdiction; it is otherwise where the alleged wrongful act affects plaintiff's individual rights only. Same — Mutual Benefit Associations — Jurisdiction of State Courts. 6. Under section 6322, Revised Codes 1921, foreign mutual benefit associations may be sued in the courts of Montana; the object of the section in requiring the appointment of an agent in the state upon whom service of process may be made is to provide for the collection of debts due from them to its citizens and to enforce the contracts made in the state through their agents. Same — Mutual Benefit Associations — Action to Recover Alleged Illegal Assessments — Right of Action in Plaintiff as Against Objection of Want of Jurisdiction in Court. 7. Where a member of a foreign mutual benefit association in an action for money had and received sought to recover payments made by him under alleged illegal assessments levied by defendant, basing his claim for relief upon the contract between himself and the association, the trial court held to have improperly sustained a demurrer to the complaint on the ground that the action contemplated interference with the management of the internal affairs of the association. Pleading — Complaint — Demurrer — What not Ground for Sustaining Demurrer. 8. Since a complaint is sufficient as against a demurrer if it states a cause of action on any theory, the fact that plaintiff may attempt to offer proof upon a theory not sustained by the complaint does not warrant sustaining a demurrer; under such circumstances defendant's remedy is by timely and proper objection to the testimony. Mutual Benefit Associations — Complaint — Pleading Conclusion of Law — What Does not Constitute a Conclusion. 9. In an action by a member of a mutual benefit association to recover payments made on alleged illegal assessments, the complaint alleged that the assessments were illegally levied because not necessary under the association's constitution. As against the objection that the averment was a legal conclusion, held that the allegation was the equivalent of saying that there was sufficient money in the fund to pay existing claims without extra assessments, — a conclusion of fact. Pleading — Conclusions of Law and Fact. 10. Where a conclusion describes a legal status, condition or offense, it is ordinarily a conclusion of law; however, where the conclusion describes a condition or status not represented or designated by some definite legal term or rule, it is ordinarily a conclusion of fact, which is an inference from subordinate evidentiary facts. Insurance Contracts — Assignment of Claims — When Rule That Insured not Entitled to Recover Back Payments Made for Dues and Assessments to Mutual Insurance Society Inapplicable. 11. The rule that breach of an insurance contract does not entitle the insured to rescind and recover back payments made and such a claim is not assignable, does not apply in an action for money had and received brought on the theory that there was nothing due under the contract. Actions — Money Had and Received — Assignability of Claim. 12. The action for money had and received is one upon an implied contract, and rights arising out of agreements or contracts between private individuals may be assigned.
Appeal from District Court, Gallatin County; B.B. Law, Judge.
Mr. Walter Aitken, for Appellant, submitted a brief and argued the cause orally.
Mr. John L. Schweigert, of the Bar of Denver, Colorado, and Messrs. Loud Choate, for Respondent; Mr. I.W. Choate argued the cause orally.
Assignability of claims: Where the common-law rule of nonassignability of purely personal tort actions has been modified by statute so that a cause of action for personal tort survives, the right is assignable. The rule has been so modified in this state. (Note, 5 A.L.R. 130; Anderson v. Wirkman, 67 Mont. 176, 215 P. 224; secs. 6805, 7414, 9086, Rev. Codes 1921.)
Life insurance policies and rights arising thereunder are expressly made assignable by statute in this state. (Sec. 8160 Id.; Capital F. Co. v. Metropolitan Life Ins. Co., 75 Mont. 460, 243 P. 1061.)
Interfering with "internal affairs" of corporation: The principal ground for complaint alleged in the amended demurrer and urged upon oral argument and briefs in the trial court is that it appears from the complaint that trial of this action will involve investigation into and overhauling of the internal affairs of the defendant foreign corporation, and hence the Montana courts have no jurisdiction of the subject matter of the action. If the contention of the defendant here is sustained the provisions of the Montana statutes with reference to foreign life insurance corporations doing business in this state and designed to give claimants against such insurance companies the right to litigate such claims in the courts of this state will be wholly and completely and most effectively nullified in every case involving the question of the validity of assessments levied and demanded from certificate holders in assessment life insurance foreign corporations. Where in such cases either the complaint or the answer discloses that the question of the validity of assessments demanded and paid or not paid is raised, the point of no jurisdiction of the subject matter of the action, if raised, must be sustained if the theory of the defendant in this case as to what constitutes its "internal affairs" is correct. The result will be that holders of insurance policies or certificates in foreign assessment life insurance corporations doing business in this state cannot prosecute their claims against such corporations in the courts of Montana, but must do so, if at all, in the courts of the state under the laws of which the insurance concern is incorporated. As pointed out by the United States circuit court of appeals in 157 Fed. 29, 84 C.C.A. 533, the practical barriers of expense and inconvenience to such action by the claimants would be in most cases insurmountable, and the claimants would have no remedy no matter how just or meritorious their claims might be. (See North State C. G. Min. Co. v. Field, 64 Md. 151, 20 A. 1039; Olsen v. Danish Brotherhood in America, 150 Minn. 8, 184 N.W. 178, 18 A.L.R. 1370; In re Fryeburg Water Co., 79 N.H. 123, 106 A. 225, 18 A.L.R. 1373; Boyette v. Preston Motors Corp., 206 Ala. 240, 89 So. 746, 18 A.L.R. 1376; Cunliffe v. Consumers' Association of America, 280 Pa. 263, 124 A. 501, 32 A.L.R. 1348; Frick v. Hartford Life Ins. Co., 179 Iowa, 149, 159 N.W. 247; Hartford Life Ins. Co. v. Douds, 261 U.S. 476, 43 Sup. Ct. 409, 67 L.Ed. 754; Castagnino v. Mutual Reserve Fund Life Assn., 157 Fed. 29, 84 C.C.A. 533; see, also, Allen v. Montana Refining Co., 71 Mont. 105, 117, 227 P. 582; Osborne v. Supreme Lodge K. of P., 69 Mont. 361, 222 P. 456.)
It is quite obvious, and not open to argument, that the question presented by this action is the construction and interpretation by head camp officers of a contract with the plaintiff here, and that review by the courts of this state of such construction and interpretation is in no sense an interference in the "internal affairs" or "internal management" of the Woodmen of the World. If such is not the case no Montana holder of a benefit certificate of the W.O.W. has any remedy outside of the courts of the state of Colorado.
Nonassignability of claims: The general rule regarding the assignability of such claims as are involved in this case is thus stated in 5 C.J., page 850, section 10: "Generally the test applied in determining the assignability of a chose in action is whether or not it would survive and pass to the personal representative of a decedent. If it would so survive, it may be assigned, so as to pass an interest to the assignee, which he can in most jurisdictions enforce in his own name; if it does not so survive, it is not assignable either at law or in equity." Citing, among other cases, Rambo v. Armstrong, 45 Colo. 124, 100 P. 586; Stewart v. Balderston, 10 Kan. 131; Noble v. Hunter, 2 Kan. App. 538, 43 P. 994; Mitchell v. Taylor, 27 Or. 377, 41 P. 119; Lawler v. Jennings, 18 Utah, 35, 55 P. 60; Slauson v. Schwabacher, 4 Wn. 783, 31 P. 329, 31 Am. St. Rep. 948.
"The idea of any property interest in the certificate, being vested in the insured member is excluded ordinarily by the very purpose of such associations which is to make provision for the dependents of deceased members and not to indemnify their estates." (19 R.C.L., sec. 70, p. 1268; Warner v. Modern Woodmen of America, 67 Neb. 233, 93 N.W. 397, 108 Am. St. Rep. 634, 2 Ann. Cas. 660, 61 L.R.A. 603.)
Examination of the L.R.A. citation in Barlow v. Grand Lodge, A.O.U.W., (Iowa) 162 N.W. 757, L.R.A. 1917E, 1032, and particularly of the case note on page 1035, discloses that there is considerable conflict in the opinion of the courts as to the right of an insured to recover assessments and dues which he has paid.
The law upon the subject is stated in 45 C.J., "Mutual Benefit Insurance," section 51, page 62, as follows: "It may be stated generally that, where there is no consideration for the payment of dues or assessments to a beneficial society by an insured member, they may be recovered back, (6) but not where the liability of the society has attached, and the member has received some benefit from the contract (7). In other words, where the contract of insurance is valid at its inception and goes into effect, but is subsequently terminated, the society is entitled to retain the assessments for the period during which the contract was in force * * *." Under note 6 of the foregoing is cited Taylor v. Grand Lodge A.O.U.W., 96 Minn. 441, 105 N.W. 408, 3 L.R.A. (n.s.) 114; Osborne v. Supreme Lodge K. of P., 69 Mont. 361, 222 P. 456; Grand Lodge A.O.U.W. v. Schwartz, (Tex.Civ.App.) 205 S.W. 156. The case at bar falls squarely within the rule as above stated. The consideration for the payments was the obligation of the association during the respective periods covered by them to pay to the respective members the respective amounts of such certificates in event of death. When the payments were made the liability of the association attached and the member received the benefit of protection under his certificate for the period covered by the payment. The contract of insurance was valid at its inception, and was not subsequently terminated by any act of the association, which latter fact makes this case much more clearly and strongly within the rule.
Interference with the internal affairs of a foreign corporation: The determination of whether or not the extra or multiple assessments were necessary would require the courts of Montana to make an exhaustive and detailed investigation into the actuarial and financial processes and affairs of defendant over a long period of years, past and future, thus involving an examination into the internal affairs of the society of a most comprehensive and exhausting nature.
If we apply the definition of the term "management of the internal affairs" of a foreign corporation, laid down by this court in the Allen Case ( 71 Mont. 105, 227 P. 582), only one answer is possible. The act complained of, namely, the alleged "unnecessary" assessment, plainly affects the plaintiff and his assignors solely in their capacity as benefit certificate holders in the defendant corporation. Likewise, it was the act of the corporation acting through its agency, the head camp officers of the Woodmen of the World thereunto duly authorized by its constitution. We cite 14a C.J., p. 1327; Taylor v. Mutual Reserve Fund Life Association of New York, 97 Va. 60, 33 S.E. 385, 45 L.R.A. 621; Condon v. Mutual Reserve Fund Life Assn., 89 Md. 99, 42 A. 944, 73 Am. St. Rep. 169, 44 L.R.A. 149; Clark v. Mutual Reserve Ins. Co., (District of Columbia) 43 L.R.A. 390; State ex rel. Minnesota M.L. Ins. Co. v. Denton, 229 Mo. 187, 129 S.W. 709, 138 Am St. Rep. 417; 8 Couch on Insurance, sec. 1984.
The plaintiff brought this action to recover certain alleged illegal assessments paid under protest by himself and his assignors to the defendant, a foreign mutual fraternal life insurance corporation doing business in Montana.
The plaintiff in his complaint alleges the corporate existence of the defendant; that he was the owner and holder of a benefit life insurance certificate or contract in the defendant corporation, a copy of which was annexed to the complaint; and that the constitution of the defendant provided: "The head officers * * * shall call a double or multiple assessment for any month when at any time the funds available in the benefit fund for the payment of death claims are not sufficient to pay monthly all approved death claims." The constitution further provided that the benefit fund shall be maintained and replenished in such manner that all death claims might be paid within twenty days after their approval.
Plaintiff further alleged that on April 25, 1929, four extra or multiple assessments were levied on plaintiff's certificate and those of his assignors, and that unless the same were paid as demanded, if within their contracts of insurance, the certificates would become void. Plaintiff and his assignors upon receipt of the demand paid the extra assessments under protest, not being advised at such time of the condition of the benefit fund and of the outstanding claims against it.
It was further alleged that these multiple assessments were "illegally, improperly and unnecessarily levied and imposed against the plaintiff and his assignors in that said extra or multiple assessments were not necessary to meet the just and lawful demands against" the defendant "for the payment of death claims," as provided in the constitution of the defendant.
Plaintiff alleged the specific amount paid by each of his assignors under protest, the assignment of the claims of his respective assignors unto himself, his demand for repayment made upon the defendant, and its refusal and retention of the payments.
The defendant appeared by demurrer, challenging the sufficiency of the complaint, on May 9, 1932. On May 28 following, before a hearing was had on the original demurrer, defendant filed an amended demurrer and included an additional ground therein not specified in the first demurrer, namely, that the court was without jurisdiction of the subject matter of the action, in that it appeared on the face of the complaint that the defendant was a foreign corporation domiciled in the state of Colorado, and that, in order for the court to grant the relief demanded in the amended complaint, it would be necessary for the court to interfere with the internal management of a foreign corporation.
The trial court, after hearing, sustained defendant's amended demurrer. Plaintiff failing to amend or further plead, a judgment of dismissal of the action was entered, from which this appeal was perfected.
Plaintiff urges that the defendant, by not raising the question of jurisdiction at the time it made appearance, waived its right to challenge the jurisdiction of the trial court.
Jurisdiction is the power to hear and determine the particular [1, 2] case presented for consideration and to render such a judgment as the law authorizes in that case. In order to bring this power into activity, there must be a complaint containing facts constituting a wrong for which redress may be had under the law; and in order to continue the activity of this power, the parties defendant must be before the court either as a result of the service of process or by voluntary appearance. ( Holt v. Sather, 81 Mont. 442, 264 P. 108.) Parties seeking to challenge the jurisdiction of the court over them waive the right so to do when they contend that through some defect in the process of the court or its service it is without jurisdiction, unless the jurisdictional question is raised at the first opportunity. ( State ex rel. Bingham v. District Court, 80 Mont. 97, 257 P. 1014; In re Graye, 36 Mont. 394, 93 P. 266.) As to other questions of jurisdiction, however, they are never waived, for consent will not give jurisdiction of subject matter. ( Rader v. Nottingham, 2 Mont. 157; Wilson v. Davis, 1 Mont. 98.)
The benefit certificate and the applicable provisions of the [3] constitution and by-laws of the defendant corporation constitute the contract of insurance between the parties. ( Osborne v. Supreme Lodge, 69 Mont. 361, 222 P. 456.)
The rule is that the allegations of a complaint are sufficient [4] if a cause of action is stated upon any theory. ( Griffin v. Chicago, M. S.P. Ry. Co., 67 Mont. 386, 216 P. 765; Hicks v. Rupp, 49 Mont. 40, 140 P. 97; Marcellus v. Wright, 51 Mont. 559, 154 P. 714; Decker v. Decker, 56 Mont. 338, 185 P. 168; Wing v. Brasher, 59 Mont. 10, 194 P. 1106.)
The general rule is that the courts of one state will not [5-7] exercise the power of deciding controversies relating merely to the internal management of the affairs of a corporation organized under the laws of another state, where the act complained of is the act of the corporation either in a stockholders' meeting or through its agents, and is an act which affects the complainant solely in his capacity of a member, a stockholder, or an officer of the corporation; under such conditions the act complained of is one done in the management of the internal affairs of the corporation, and in the case of a foreign corporation our courts will not assume jurisdiction. ( Allen v. Montana Refining Co., 71 Mont. 105, 227 P. 582; North State etc. Min. Co. v. Field, 64 Md. 151, 20 A. 1039; note, 18 A.L.R. 1383.) Where, however, the act of the corporation complained of affects the complainant's individual right only, then our courts will take jurisdiction whenever the cause of action arises here. ( Allen v. Montana Refining Co., supra.)
Foreign corporations of the character of the defendant may be sued in the courts of this state, and are required to maintain an agent within the state upon whom service of process may be made. (Sec. 6322, Rev. Codes 1921.) The object of statutes of this nature is to provide for the collection of debts due from foreign corporations from its citizens and to enforce the contracts made here by foreign corporations through their agents. ( North State etc. Min. Co. v. Field, supra.)
Although it is true that plaintiff in this case was a member of the corporation, he bases his claim for relief upon a contract between himself and the corporation. Under his contract multiple assessments were only to be levied when there were insufficient funds to pay death claims in the benefit fund within twenty days after their approval. If the plaintiff is able to establish as a matter of fact that there was sufficient money in that particular fund to pay the death claims, the officers of the defendant corporation were without power to levy the multiple assessments. The determination of this fact, if favorable to the plaintiff, would result only in the rendition of a money judgment definite and certain in amount. Such an investigation and judgment will not interfere with the management of the defendant corporation's internal affairs. ( Hartford Life Ins. Co. v. Douds, 261 U.S. 478, 43 Sup. Ct. 409, 67 L.Ed. 754.)
Counsel for the defendant urge that under the allegations of the complaint it might be attempted to investigate the internal affairs of the defendant, as was involved in a number of cases which they cite, among them Woodmen of the World v. McCue, 88 Colo. 209, 294 P. 947; Taylor v. Mutual Reserve Fund Association of New York, 97 Va. 60, 33 S.E. 385, 45 L.R.A. 621. [8] Bearing in mind, however, the rule that the complaint is sufficient against demurrer if it states a cause of action upon any theory, the fact that plaintiff may attempt to offer proof under a theory upon which the complaint does not state a cause of action, will not warrant the sustaining of a demurrer. If on the trial of the cause such an attempt is made, the proof may properly be excluded by timely and proper objections.
Defendant argues the allegation of the complaint wherein it [9] alleges "that said extra or multiple assessments were illegally * * * levied, in that said * * * assessments were not necessary" to meet the death claims against the defendant, as provided by its constitution, was a conclusion of law; hence the complaint does not state a cause of action. Defendant asserts that it was incumbent upon plaintiff to state why the assessments were unnecessary.
The officers of the defendant under its constitution could only make extra or multiple assessments when the amount of money in the "benefit fund" was insufficient to pay death claims within twenty days after their approval. If the assessments were unnecessary, they were so only because there was sufficient money in the benefit fund of defendant to pay all approved death claims.
Defendant contends that the above allegation was equivalent to the statement that the assessments were void or illegal. To say the assessments were illegal or void is clearly a conclusion, for they might have been illegal or void for any number of reasons. However, when the plaintiff pleads the provisions of the constitution wherein the only authority for levying multiple assessments was when it was necessary to enable the society to pay claims, then to say the assessments were not necessary is susceptible of but one meaning, namely, that there was sufficient money in the benefit fund of the defendant to pay the existing death claims.
Where the conclusion describes a legal status or condition or [10] a legal offense, it would ordinarily be termed a conclusion of law; where, on the other hand, the conclusion describes a condition or status not represented or designated by some definite legal term or rule, it will ordinarily be a conclusion of fact. Conclusions of fact are said to be inferences from subordinate evidentiary facts. ( Travelers' Ins. Co. v. Hallauer, 131 Wis. 371, 111 N.W. 527.) The allegation under consideration is a conclusion of fact, and not of law, and therefore the contention made is without merit.
The defendant further contends that the claims which were [11] assigned to plaintiff are not assignable. Defendant seeks to invoke the rule that a breach of an insurance contract will not entitle the member to rescind and recover back dues and assessments paid by him. (45 C.J. 64.) This rule is without application here, as the payments made by plaintiff's assignors under his theory of the case, were not due under the contract of insurance.
The action is for money had and received, and such an action [12] is upon an implied contract. ( School District No. 12 v. Pondera County, 89 Mont. 342, 297 P. 498.) It is the general rule that rights arising out of agreements or contracts between private individuals, may be assigned. ( Standard Sewing-Machine Co. v. Smith, 51 Mont. 245, 152 P. 38, L.R.A. 1918A, 292.) The contention of the defendant is without merit.
The judgment is reversed and the cause remanded, with direction to overrule defendant's demurrer.
ASSOCIATE JUSTICES ANGSTMAN, MATTHEWS and STEWART concur.
I concur, but with some doubt. If plaintiff had alleged that when the multiple assessments were called there was sufficient money in the benefit fund to pay all death claims within twenty days after approval, I would concur without hesitation.