
    STRAUSS v. MUTUAL RESERVE FUND LIFE ASSOCIATION.
    (Filed June 4, 1901.)
    1. INSURANCE — Contract—Mutual Benefit Associations — Tested Rights.
    
    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 bis vested rights.
    2. INSURANCE — Tested 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.
    PetitioN to rehear this case dismissed. Eor former opinion, see 126 N. C., 97.
    
      W. W. Ciarle, for the plaintiff.
    
      Hinsdale & Lawrence, Shepherd & Shepherd, and Sewell Tyng, for the defendant.
   Douglas, J.

This case is before ns on a rehearing, being originally reported in 126 N. C., 971. We hare again given it careful consideration, and have been forced to the same Conclusions announced in our former opinion. It seems useless to again discuss the principles involved, as they are few and simple as the case is viewed by us. The plaintiff had a contract of insurance with the defendant, which the latter seems to have violated in its most essential features with the result of having destroyed its value to' the plaintiff. But it is said that the plaintiff made such contract of insurance with a mutual insurance association of which he was a member, and by virtue of such membership'; and that he is therefore bound by all such rules and regulation® as niay be thereafter lawfully adapted. “Lawful adoption” may mean much or little. Rules may be adopted under the forms of laiw that might nevertheless be so unreasonable and inequitable as to be clearly beyond 'any possible coaitemplation of law. In any event su.cli rules can never have any greater force ¿barn the law that authorizes their adoption, and if this has the effect of impairing the obligation of a contract, i!t is void by constitutional inhibition.

Buit it is said that the plaintiff upon entering the association agreed, expressly or impliedly, that changes might be made in its constitution and by-laws, and is bound thereby. We have no evidence that he agreed that such changes might be made as were made; and we have no- idea that he ever intended to' place it within the power of the association to' break bis contract at pleasure, or render it utterly valueless by subsequent stipulations or regulations adopted without Ms consent. A mere general consent that the constitution and bylaws may be amended, applies only to surah reasonable regulations as may be within the scope of its original design. We nruslt again repeat what we said in our former opinion: “Whatever may be the power of a mutual association to change its by-laws, such changes must always be in furtherance of the essential objects of its creation, and not destructive of vested rights.”

It is urged by the defendant that if the plaintiff is entitled to' 'any relief, it is not by recovery of the premiums he has p'aid, bait by mandamus for reinstatement. Tbis remedy is not demanded by the plaintiff, nor does it seem practicable to ns. It is true we might issue 'the mandamus to a foreign corporation having its general offices in New York, bnt how to mlake surah a mandamus effective is a different question, the solution of which is not at ¡all olear to' us. More"over, in the present instance the plaintiff, Strau'ss, is now dead. Much stress ha;s been laid upon the fact that the Supreme Court of Minnesota, in Ebert v. this defendant, 83 N. W. R., 506, while agreeing with us upon the main question of the right of recovery, differ© wilth ue as to' the measure of damage. We are much impressed with the views of the Court upon that point, which have much to' commend them as theoretical propositions; hut we are equally impressed with the frank admission of the Court as to' the difficulty of their practical application.

Our own rule, even in our own minds, falls, short of theoretical perfection, but after most careful consideration we are nnable to find a better. The impaired health of the insured, or his having passed the insurable age, would present complications practically insurmountable in the aetnal trial of an action. Moreover, the defendant claims that the plaintiff’s insurance bais cost more .than he has paid in, and therefore his recovery would be nothing. The plaintiff Would have no means of disproving the alleged cost of his past insurance, the proof of -which would be exclusively in tOie possession of the defendant. He might cross-examine tibe defendant’s witnesses or demand its books and papers; but if he got them, whiait could he do with them ? It seems to' have taken the defendant several years to find out that the plaintiff’s insurance was costing more than his premiums, and this it did only with -the assistance of the Insurance Commissioner of New York anid expert actuaries. With or without snch assistance, what chance wonld the 'average juror have of mentally digesting five hundred pages of insurance statistics ?

All actions must be capable of a practical deferminjaltion, with a reasonable certainty of substantial justice; and rules of law must be adjusted to' that end, even if in exceptional cases they fall short oif 'the full measure of ideal right. A distinguished jurist has said: “Indeed one of the remarkable tendencies of the English Common Law upon all subjects of a gaieral nature is, to- aim at practical good rather than at theoretical perfection; and to seek less to administer justice in all possible oases, than to furnish rules which shall secure it in the common course of hurnlan business.” Story Eq. Tur., page 115. The rule we have followed is not new. It wias- laid down by Obief Justice Pearson in Braswell v. Insurance Co., 15 N. C., 8, and has been uniformly followed in this State for the past twenity-five years.

But- if is said tbis rule wias intended to apply to “old line” companies and not to- mutual associations. Where is the essential difference- in principle or in its practical result? Both companies pay back only what they have received with legal interest thereon, and neither company is permitted ioi retain anything for the cost of past insurance. If tbe mutual association receives less, it pays back less. If the “old line” company collects more -than the actual cost of insurance; it pays back that mudh more, and loses its- surplus -as well as its cost of insurance.

As we see no reason to change our former judgment, the petition to rehear’ is denied.

Petition dismissed.  