By the Court.
¶1
The sole question left in the case is whether the individual members of this insurance association are now liable to the beneficiary of the deceased member for the full amount of $1,000, or any other sum.
¶2
Counsel for the beneficiary contend that the members of the association must be held liable for the acts of the treasurer of the association, and that, if those acts were negligent in character and resulted in the loss of the amount coming to the beneficiary, then and in that event the members of the association must come forward with the payment of another sum of $2 each in order to make good the loss that arose by reason of the negligence of the treasurer of the association.
¶3
Counsel for the individual members of the association insist that each member of the association has paid and fully discharged the only obligation that he ever entered into with the deceased member, that is to say, they paid their $2 each to the treas
*431
urer, and that they cannot now be required to pay $2 each, or any other sum, to make good the loss that the beneficiary has sustained by reason of the negligent acts of the treasurer, as stated, if such acts are found to be negligent. The Court of Appeals entered final judgment in favor of the members of the association, and then, finding that the question of the personal liability of the treasurer evidently had not been properly tried out, the cause was remanded in order that that issue might be properly disposed of in the trial court.
¶4
A majority of this court are of the opinion that the action taken by the Court of Appeals wias entirely correct, and that judgment will therefore be affirmed.
¶5
Judgment affirmed.
Marshall, C. J., Kinkade, Matthias and Day, J<1., concur.
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Case posture Posture ERROR to the Court of Appeals of Cuyahoga county.
There is a great multiplicity of pleadings filed, and court orders made in respect to the issue presented in this case, many amended pleadings, motions, and demurrers, and arising out of these pleadings and orders is a state of confusion which it will serve no good purpose to restate here, even if it could be done with any reasonable clarity, which it is entirely safe to say is well nigh an impossible task.
The issue in the case is not complicated. It arises out of the following facts:
The Pittsburgh Steamship Company was operating a line of vessels on the Great Lakes, and had in its employ a large number of men, including a large number of officers on its various boats. The officers on the boats elected to form an insurance association or union for their mutual benefit. The initiation fee was $5. Nobody could become a member who was not an officer on a boat. Anybody who was an officer and was willing to pay the initiation fee and subscribe to the rules of the association could become a member by doing those things.
The regulations of the association provided, among other things, that the assistant auditor of
the Pittsburgh Steamship Company should be the treasurer of this insurance association. By the agreement that was signed by all the members the members obligated themselves each to every other that upon the death of any member of the association each member would pay in to the treasurer the sum of $2, and that the aggregate of these payments should be paid to the beneficiary that had been designated by the deceased member. The limit of the amount to be paid to such beneficiary was fixed at $1,000. Pending the collection of the $2 assessments upon a death occurring, if the treasurer had sufficient money on hand to pay the $1,000, made up of initiation fees or collections that had not been disbursed, the $1,000 could be paid by the treasurer out of the funds on hand, and then the collections would reimburse that fund as they came in. The treasurer was not elected by the members of the association, nor was he paid anything for his services as treasurer of the association. He was an employee of the Pittsburgh Steamship Company, and he was only treasurer for the insurance association so long as he remained the Cleveland representative of the company, acting in the capacity of assistant auditor, and if for any reason or at any time this assistant auditor left the employ of the company, then whomsoever the company appointed to succeed him as assistant auditor at Cleveland would by reason of such appointment become the treasurer of the insurance association.
The agreement of the individual members of the insurance association was that they would pay two dollars into the hands of the treasurer whenever a death of any member occurred. That was the sole
contractual obligation of the members respectively. Under the regulations of the association, it was the duty of the treasurer to collect and disburse this money, as stated.
There was an executive committee of three members of the association who were designated by the steamship company, and the duties of this executive committee were to look after the financial affairs of the association and to settle by arbitration any dispute that arose between the members of the association, and their adjustment of such disputes was to be final and binding upon all the parties.
The members of the association were scattered all over the Great Lakes, wherever the boats of the steamship company went.
Upon a given date, one of the members of the association was drowned when a vessel of the steamship company was wrecked in the waters of Lake Superior. This death was reported in due course to the treasurer of the association, the assistant auditor of the steamship company at Cleveland, and, in due course of his duties, he collected an assessment of $2 from each of the members with which to pay the beneficiary named in the certificate of the member who was drowned.
It is not contended that any member failed to pay this $2 assessment. It is conceded that they all paid it. Whether with these particular payments the treasurer undertook to pay the beneficiary named in the certificate of the drowned member, or whether it was paid from funds on hand in the treasury, is not made very definite in the record, but it is not at all material which way it was attempted to be paid. The beneficiary under the certificate in question resided
in Germany, or Bavaria, and was the father of the deceased member. The treasurer appealed to a bank in Cleveland to advise him as to the proper method of forwarding this $1,000 to the beneficiary in Germany, and learned from the bank that the usual course of procedure in transmitting money to Germany was to purchase German marks to the extent of the amount to be transmitted, and to forward those German marks to the representative of the United States in Germany at a point nearest to the residence of the beneficiary. At that time the German marks were of very uncertain value, sometimes fixed at one price and other times at another, but in general the fluctuation in price was nearly always downward instead of upward. The treasurer elected to follow the advice he got at the bank, and purchased German marks at the then current price, and undertook to forward those marks, in kind, to the beneficiary, through the American representative in Germany. It was not easy to discover the exact address of the beneficiary, and a good deal of time was consumed in an effort to ascertain his address. By the time this fact was ascertained and the American representative was able to reach the beneficiary, the total of the marks sent had been so reduced in value as that they were worth very much less in American money than $1,000, and on this account the tender of the marks in settlement of the amount due the beneficiary was refused by the beneficiary. As a result of this refusal, still more time elapsed, and, after a considerable lapse of time, these marks were returned to the treasurer at Cleveland, Ohio, where they had been purchased. They remained in the hands of the treasurer for a considerable time,
and by the lapse of this time the marks became entirely worthless.
In due course a demand was made upon the treasurer by a representative of the beneficiary to pay the amount due on this certificate of membership, that is to say, $1,000. This demand was refused, and this refusal resulted in the bringing of the action that has since been pending, and which presents the issue for consideration here.
Without undertaking to trace in detail the various steps that were taken in this litigation, it may be said in general that the action took the form of one to recover from the treasurer and all the members of the association. At no time did anybody claim that the Pittsburgh Steamship Company could by any form of action be made liable to the treasurer of this insurance association or to the beneficiary of any deceased member of the association. No one contended that any liability existed against the steamship company. It appeared as a fact in the case that, after the returned German marks had become wholly worthless, the executive committee of the insurance association met and considered the question whether the treasurer had been in any wise derelict in his duties, as shown by his efforts to remit the amount to the beneficiary, and, after hearing all that had been done in that respect, the executive committee approved all acts of the treasurer, and went further and made a definite finding that neither the treasurer nor anybody else was in any manner indebted to the beneficiary in any sum whatsoever.
The trial court determined the issues in favor of the beneficiary, and against the treasurer and the members of the association. Upon error to the
Court of Appeals, that court reversed the judgment of the trial court, entered final judgment in favor of all the members of the association, and remanded the case to the trial court to determine the question whether the treasurer was himself personally liable to the beneficiary. When the litigation had reached this stage, this court ordered the Court of Appeals to certify the record here for review. Source: CourtListener
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