168, § 8; Com. v. Dennis, 105 Mass.162. After all these changes in the statutes, the point decided in Bowen's case was ruled in the same way by Chief Justice Bigelow and Justices Dewey, Hoar and Chapman, in a case which has not been reported. Com. v. Pratt, Berkshire, 1862.

Since it has been provided by statute that "any crime punishable by death or imprisonment in the state prison is a felony, and no other crime shall be so considered," it may well be that suicide is not technically a telony in this commonwealth. Gen. Stats., ch. 168, § 1; Stat. 1852, ch. 37, § 1. But being unlawful and criminal as malum in se, any attempt to commit it is likewise unlawful and criminal. Every one has the same right and duty to interpose and save a life from being so unlawfully and criminally taken, that he would have to defeat an attempt unlawfully to take the life of a third person. Fairfax, J., in 22 E. IV, 45, pl. 10; Marler v. Ayliff, Cro. Jac. 134; 2 Rol. Ab. 559; 1 Hawk. ch. 60, § 23. And it is not disputed that any person who, in doing or attempting to do an act which is unlawful and criminal, kills another, though not intending his death, is guilty of criminal homicide, and, at the least, of manslaughter.

The only doubt that we have entertained in this case is, whether the act of the defendant, in attempting to kill herself, was not so malicious, in the legal sense, as to make the killing of another person, in the attempt to carry out her purpose, murder, and whether the instructions given to the jury were not therefore too favorable to the defendant. EXCEPTIONS OVERRULED.

Making

1. INSURANCE BUSINESS A FRANCHISE. assurance upon lives by a corporation in this state is the assertion of a grant from the state, and the exercise of it without a grant is a usurpation. At common law any man might insure, but within recent times the business has been the subject of legislative regulation, and in this state it has been taken under control of the state for the better security of policy holders, and no individual, association or corporation can engage in it without a grant from the state.

4. INSURANCE COMPANY WHAT IS.-Individuals associated together by no other tie than that of mutual indemnity, having paid officers, giving premiums for new members, and in which the sole condition of membership is health and probable duration of life, are engaged in insurance. Whether if their primary object is literary, social or benevolent, to which a feature of mutual insurance is added, they would be-query?

5. QUO WARRANTO.-Information in the nature of, is the proper remedy where a company or corporation exercises a franchise not granted.

The information charges that, without any charter or lawful authority, the defendant has engaged in the making of insurance upon human lives for and in consideration of premiums paid; that of making contracts whereby in consideration of a sum of money in gross and of periodical payments of stipulated sums of money, it undertakes to pay money at a time depending upon the death of the person whose life is insured, and generally in doing and transacting the business of making assurance upon the lives of individuals, and transacting the business of a life insurance company.

The return, or plea to the information contained: first, justification under an incorporation under Art. 8, Chap. 37 Wag. Stat.; second, that its object, as set out in charter and by laws, "is to give financial aid to the widows and children of deceased members, or to such uses and purposes as such members shall, by last will and testament direct, from funds obtained by assessments upon its members made for that purpose upon the death of each member." The articles of association, certificates of incorporation and by-laws being filed and made part of answer; third, "that it has carried on on its business strictly in pursuance of said object and purpose, and in no other manner and for no other purpose or object whatever, and that it has not in any manner engaged in or carried on the business of life insurance."

A stipulation as to the facts was filed, by which it appears,

First. That the charter or articles of association and certificates of association attached, as well as the by-laws filed, are those of defendant. That it is doing business under them and has no other authority.

Second. The applicants for membership are only admitted upon the signing of paper marked exhibit B., and on passing a satisfactory examination and obtaining a satisfactory medical certificate.

Third. That a certificate of membership (see copy in opinion) is issued to each member-that it is the form issued and used by the Board of

Trustees regulating and prescribing the amounts per member to be paid by the association, and determining the classification.

Fourth. That defendant is engaged in issuing such certificates, collecting dues and assessments, paying death losses and operating by means of and on the plans shown in the above exhibits.

Fifth. That subject to the limitations and requirements in the articles of association, by-laws and applications for membership, the public at large may become members.

Sixth. That it has no charter as an insurance company, under the insurance laws, nor any certificates or authorization from the insurance department.

On these pleadings and facts the counsel for the state moved for judgment.

The company was organized Dec. 20, 1877. Motion for judgment of ouster on the pleadings, facts and law.

Geo. D. Reynolds and R. Graham Frost of counsel with the Circuit Attorney, for the motion.

1. The contract between the association and its members is an insurance contract. Bouvier's Law Dict., Titles "Insurance," "Insurance on Lives-Contract, 1. and 2;" Burrell Law Dict. Title Insurance;" 1 Marshall on Insurance, pp. 1, 52, 53; 2 Ibid. pp. 766, 767, and notes; Bliss on Life Ins., 2d Ed., § 3; May on Insurance, §1; Harrison v. Millər, 7 T. R. 340; Lees v. Smith, 7 T. R. 338;Commonwealth v. Wetherbee, 105 Mass. 149. The prohibition is against the mode of doing the business, not against the object. The fact that the purpose of defendant's organization is charitable or benevolent does not change the character of its business; the primary object of all insurance was benevolence. Com. v. Wetherbee, supra; 2 Marsh. Ins. supra; Gov. of Alms House, &c., v. American Art Union, 3 Selden (N. Y.) 237. Nor does the fact that no sum in gross is set out in the contract, change its character-enough appears in the contract to enable the sum to be made certain. Com. v. Wetherbee, supra; Broom's Legal Maxims, 7th Ed., § 624. Nor does the absence of a guarantee fund, eo nomine, or of a stipulation to make such a fund responsible for the payment of the loss, change the character of the contract. At most the absence of such a feature affects the solvency of the company and lessens the security to be insured.

2. The policy of this state requires persons or companies doing life insurance business to comply with certain laws (see Wag. Stat. Chapt. 76) and prohibits companies as well as individuals and associations of individuals from carrying on the business except in a certain manner and under certain restrictions prescribed. Wag. Stat., Chapt. 76, Art. 2, §§ 1, 10, 11, 12, 19, 21, 23, 36, 46. the recommendation of the Insurance Department made through the governor of the state (3 Ann. Rep. Mo. Supt., Part 2, p. 14, et seq) the law was amended in 1874 so as to include associations of individuals, as well as corporations. See Acts. 1874, p. 81, §§ 3 and 5.

On

Incorporation under Art. 8, Chapt. 37 Wag. Stat. conferred no authority to do insurance business.

Art. 8 (old chapt. 70, G. S. 1865) was not intended to cover insurance; when it first was enacted chapts. 67 and 90, Gen. Stat. 1865, provided for insurance corporations. Even if it ever did, the act. of 1869 (Wag. Stat. chapt. 76, § 53) repealed it. The circuit court had only such power as to creating corporations as the statutes gave it, and if it be admitted that the insurance character of the defendant appeared by its articles of association, then the certificate of the court was void; if it did not appear, then it has perverted a lawful charter to an unlawful use and has usurped a franchise never conferred.

4. This form of insurance is so unsafe as to have been prohibited by name in Michigan (Nat. Life Ins. Co. v. State Coms. of Ins., 25 Mich. 321) and cannot be carried on in our state under the law, as no such company can meet the requirements of chapt. 76 Wag. Stat.

5. Quo warranto is the proper remedy. People ex rel Att'y Gen'l v. Utica Ins. Co., 15 Johns. 358.

McGinnis & Searle for defendant, in printed argument.

If the defendant is for purpose of life insurance, and if that is its business as judged by its constitution, by-laws, and the nature and conduct of its business, then it has no organization under the insurance laws and must fall. We have no statutory nor judicial definition of life insurance; the legislature and courts treat it as being defined and well understood. After search we have been unable to find any adjudication as to whether associations like this come within the definition of life insurauce. Life insurance is a contract, by which the insurer, in consideration of a gross sum or annual payment, agrees to pay the person for whose benefit the insurance is effected, or his executors, administrators or assigns, a certain sum of money, or an annuity, on the death of the person so insured, whenever it happens, if the insurance is for the whole life; or in the event of the death happening within a certain period, if the insurance is only for that period. 3 Kent, 365; Wms. Real Prop., 159 V. 1: Smith's Merch. Law, 456; Bunyon 1, 5; Baron Parke, 15 C. B. 365. Our insurance laws were enacted in view of and under the above principle. It governs joint stock as well as mutual companies. All those elements must be in an insurance contract.

To sustain the promise of insurance, the insured person must pay a gross sum or an annual payment. The revenue from this is to meet losses. The defendant does not require either a gross sum or annual payments. It only requires a certificate fee of one dollar, and an annual membership fee, according to the class. Sec. 1, Art. 2 By-Laws. This revenue is not to meet losses, but to pay expenses. If any surplus should accrue, it is to be invested in state or U. S. bonds, or might be used in building hall, etc. Part 10, Articles of Association; Sec. 1. Art. 4, By-Laws; Act Apl. 1, 1877.

Payment of widows, etc., is only provided for by assessment upon surviving members. Part 7, Art. Association; Sec. 2, Art. 2 By-Laws. The payment of such an assessment is neither payment

of a gross sum or of an annual payment in consideration to support any promise to pay widow, etc., upon death of member.

The consideration on the part of the company must be to pay a certain sum of money on the death of the person insured. But the object of the defendant is to give financial aid to the widows, etc., of deceased members. Part 1, Art. Ass'n.

The fund to do this with is derived from assessments upon survivors. Part 7, Art. Ass'n; Secs. 2, 3, 4, Art. 2 By-Laws. These sections provide for the payment of no certain sum of money, nor is provision made for the absolute payment of any sum. Hence the association is not a life insurance company. An examination of the certificate of membership, which is the contract, and the only one entered into, shows this. By this certificate no certain aggregate sum is promised. It is not even an ascertainable sum, because the surviving members cannot be held legally bound to pay his assessment. If he fails to pay, he merely ceases to be a member. It is not only an uncertain sum, but by the proviso of the contract, is a contingent one. Nor can the defendant be made to pay unless it has collected. So that the sum to be paid is totally uncertain, contingent, conditional and incapable by legal means of being made otherwise. All that can be made of the defendant is that it is a charitable body formed to financially aid the widows and children of deceased members; it is voluntary in its operations, its continuance, its membership and in the payment of fees and assessments on part of its members, and dependent for its existence, benefits and charities upon the honor and benevolence of its members. Com. v. Wetherbee, 105 Mass. 149, relied on by the state, is not parallel. The two contracts are very different. The case, so far as it goes, is in favor of the defendant here. It classifies the Connecticut company as a life insurance company upon the very reasons which necessarily show that this defendant is not one. The policy of the Connecticut company was assignable-this is not. That could transact its business anywhere-this is confined to St. Louis.

The defendant is merely a beneficial association, confines its operations within the sphere of its own members, who are bound together by respect and confidence, and who rely on one another and not on the promise of the association. It issues no policies, and its business is not for profit.

BAKEWELL, J., delivered the opinion of the

court.

This was an information in the nature of a quo warranto filed by the Circuit Attorney against defendants, for carrying on the business of life insurance within the city of St. Louis without any charter or lawful authority.

The return alleges that defendant is a corporation organized under the general law in regard to benevolent associations, for the purpose of giving financial aid to the families of deceased members from proceeds of assessments upon the members of the association; that defendant has, in all respects, strictly pursued the objects for which it

was created, and has never carried on a life insurance business.

The answer is accompanied by an agreed statement of facts, of which the charter and by-laws of defendant, the form of contract with its members, and blank forms of examination on application for membership, form a part.

Relator asks for judgment of ouster upon the pleadings and evidence.

The articles of association of defendant, filed at the time of the application for incorporation under the provisions of law in regard to the incorporation of benevolent associations (Wag. p. 339, §§ 1, etc.) state that its objects are to give financial aid to the widows and children of deceased members, or to such uses as the members shall by last will appoint. If there are neither widow, children, nor will, then the aid is to form part of the general fund of the association. Applicants for membership must be between twenty-five and fifty-five years old and residents at the time of St. Louis or of East St. Louis, on the opposite side of the river, in Illinois. The Board of Trustees accept or reject applications. The officers, and the mode of their election and their duties are set out. The Board of Trustees are authorized to make bylaws to regulate the terms of membership and rate of initiation fee; to divide the membership into classes according to the sum to be paid on the death of a fellow member, and to limit the number of members in each class: to regulate the manner and time of payment, and the amount to be paid to the representatives of a deceased member of a class; to determine the disposition of the surplus funds; to provide for new offices and officers; to amend the by-laws; to provide what shall constitute forfeiture of membership; and to provide a rule for the equitable distribution of its property among its members if two-thirds of its members shall determine to close the affairs. The association may hold personality to the amount of $250,000; it may continue for ninetynine years; the trustees may invest the surplus funds in bonds of the State or of the United States and not otherwise.

The by-laws require every person applying for membership to answer, in writing, printed questions such as are usually put by insurance companies, and to furnish a certificate by a medical examiner, such as is usually required by such companies.

The association consists of two classes, A and B -each limited to 2,000 members; one man may belong to both classes. The annual membership fee for men under forty is $5 in class A and $3 in class B, and for members over forty it is $3 in A and $4.50 in B. On admission each member pays a certificate fee of $1 and an assessment fee as upón a member's death. When a member dies each member of his class is assessed $2.50 or $1, according to the class of the deceased—the higher assessment being for class A. Proofs of loss are to be filled up according to a blank form, and if found correct, on investigation, the Board orders payment in thirty days, and causes an assessment of the class of the deceased; if this is not paid in

thirty days failure to pay forfeits membership; the member who has forfeited may be reinstated on payment of arrears. The Executive Committee is to take charge of all business and property, and see to the safety of investments. It meets at semi-monthly intervals, and its members are paid $2 each for each attendance, and may hold extra meetings. The duties of other officers are set forth. The manager and secretary receive such compensation as the trustees provide. The manager is to solicit for members; and each member receives $1 for each applicant he procures who is accepted. The certificate of membership is in the following form:

Class B-, No.-, Citizens' Benefit Association of St. Louis.

This certificate of membership witnesseth that the Citizens' Benefit Association of St. Louis, in consideration of the representations made to it in his application for membership, which is hereby made part hereof, and of the sum of dollars, to be paid on or before the day of in every year during the continuance of his membership in this association, and of one death assessment of $1 to it in hand paid; and the further sum of $1 to be paid by him to this association within thirty days after notice served on him of each death occurring in the membership of class B of this association, promises and agrees to and with the said

to be paid to

well and truly to pay or cause wife, or the legal representatives of the said within thirty days after due notice and satisfactory evidence of the death of the said the sum of $1 for every surviving member of class B of this association. Provided, however, that in the event of the non-payment of assessment of any member or members of said class within the prescribed time, then the residue of said benefit shall be paid to the person or persons entitled thereto under this certificate as and when collected thereafter; but in no case shall any sum be paid until so collected by assessment upon the said surviving members of said class B, as provided by the regulations of this association, and subject always to said rules and regulations, upon the condition, however, that if the said shall fail to pay any assessment or sum becoming due under this agreement, or under the rules of this association, now in force or hereafter passed, when the same becomes due, then this agreement shall be null, void, and of no effect, and all previous payments by the said made, shall be forfeited to this association. In witness whereof the said association has caused its seal to be hereto attached, and these presents to be signed by its President and Secretary, at the city of St. Louis, day of

this

President. Secretary.

It is admitted that defendant has no authorization from the Insurance Department of the State; and that it has neither charter nor articles of incorporation under any provision of the law of the state relating to the incorporation of insurance companies.

The exercise of the right of carrying on the bus

iness of making assurance upon lives by a corporation in this state, is the assertion of a grant from the state to exercise the privilege, and is, therefore, the usurpation of a franchise, unless it can be shown that the privilege has been granted (acts 1874, p. 91, sec. 3-5). It is conceded that defendant was not incorporated under the law in regard to insurance corporations; that it has no power to carry on an insurance business, and that it complied with none of the provisions of the law specially applicable to insurance companies. If, then, it appears from the facts stated, that defendant is carrying on an insurance business, as it shows no authority for the exercise of such a franchise, the state is entitled to judgment of ouster. It is contended by respondent that the contract made by defendant with each of its members, is not, properly speaking, a contract of insurance; that it differs from the ordinary contract of insurance in the following respects:

That defendant does not agree to pay a certain sum in case of the death of the assured; it does not even agree to pay a sum which may be rendered certain as so many dollars for each member of the class to which assured belongs.

The payment is subject to a contingency that the members of the class in which the assured died shall pay their assessments. The amount to be paid is not to exceed a certain sum, but it may be diminished by a failure to collect the assessments. At the expiration of thirty days the defendant is to pay the legal representatives of the deceased such sum as shall have been collected of assessments made upon the members of the proper class, and, from time to time thereafter, such further sum as shall be collected from such assessments. This money is not to be paid to the assignee of the insured. If he makes no will and leaves no widow or children, no payment is to be made.

In these respects the contract differs from that under consideration in the case of Commonwealth v. Wetherbee, decided by the Supreme Court of Massachusetts in 1870 (105 Mass. 149), a case in many of its features very similar to the one before us, and the only case, so far as we are informed, in which the question as to whether organizations of this character are to be considered insurance companies and subject to the insurance laws of the state, has been considered.

There the court held that all that is requisite to constitute a contract of insurance is the payment of a consideration by the one and the promise of the other to pay the amount of insurance upon the happening of the loss; that the fact that the object of the organization was benevolent and not speculative was immaterial, and that, though the amount payable was not a gross sum, but a sum graduated by the number of persons in the class at the time of the death of the insured, and though there was no means provided for enforcing payment of premiums, the contract was a true contract of insurance; and that the conviction of defendant for acting as agent of an insurance company not incorporated in the Commonwealth without first procuring a license from the Insurance

Commission ought to be sustained. In that case, the judge delivering the opinion of the court defines a contract of insurance as an agreement by which one party, for a consideration, promises to make a certain payment of money upon the destruction or injury of something in which the other party has an interest.

The text writers generally give similar definitions, and in the definitions of the contract cited by them from the reports, the amount to be paid on the happening of the loss is commonly spoken of as a fixed sum, or a certain sum. In Patterson v. Lowell, 9 Bright. 320, cited in the text of Bliss on Life Insurance, p. 4, insurance is defined to be "a contract in which a sum is paid as a premium in consideration of the insurer's incurring the risk of paying a larger sum upon a given contingency." "Insurance," says Marshall (Vol. I, p. 1), following the civilians whom he cited in the note, "is a contract whereby one party, in consideration of a stipulated sum, undertakes to indemnify the other against certain perils or risks to which he is exposed, or against the happening of some event," and the "insurance of life is a contract whereby the insurer, in consideration of a certain premium, either in a gross sum or periodical payments, undertakes to pay the person for whose benefit the insurance is made a stipulated sum, or an annuity, equivalent upon the death of the person whose life is insured, whenever this shall happen, if the insurance be for the whole life, or in case this shall happen within a certain period, if the insurance be for a limited time." Vol. 2, p. 766. The law, however, is not fond of definitions; and these definitions are to be taken, perhaps, rather as statements by the learned men who make them of the contract as they find it existing around them, than as strict definitions, which contain every essential element, without which the thing can not exist, and exclude everything not necessary to its being.

It is true that in the contract of insurance the sum to be paid is commonly a sum certain, or that may be rendered certain, and which, therefore, is really certain, according to the well known maxim. Thus, in the contract considered in the Massachusetts case, the amount to be paid, though uncertain at the period of insurance, is definitely fixed at the time of the loss, and that amount the company agrees to pay. In the present case, the amount which the company is to pay is fixed in the same manner by multiplying the number of insured in the class to which deceased belonged by the amount of the assessment, but it is provided that the insuring company shall be liable for no more of that amount than is actually collected by it, or than it can collect by the exercise of proper diligence. We do not think that this proviso renders the sum uncertain in such a sense as to make that which, but for this provision, would be a contract of insurance, really a contract of a wholly different nature. It may be asked, if this is not a contract of insurance, what is it? In many recognized forms of insurance, the actual amount to be paid is not rendered certain until the death of the insured. In this form it is rendered certain as soon

the month within which the members must pay as their assessments has passed. If those assessments are not paid, the company can not compel their payment; the member not paying merely forfeits his membership, and the fact that any such member may possibly be re-instated and pay his arrearage, and that his assessment would then be payable to legal representatives of the deceased, does not create such an uncertainty about the sum to be paid as to destroy the character of this contract as one of insurance. The policy of insurance in defendants' company is not assignable; but we do not think that it is of the essence of a policy of insurance that it should be capable of being thus transferred, though it is probably true that policies are commonly made transferrable with the assent of the company issuing them. In the case under consideration, the policy may be transferred by last will, at the pleasure of the insured, but not otherwise. At common law, any man might insure; but, on the suggestion that commerce might suffer considerably by persons in insolvent circumstances failing to make their losses good, the British Parliament, about 150 years ago, in accordance with the existing practice of granting monopolies, gave the exclusive right of marine insurance, which alone was practised then, to two companies (Marsh Ins. 48), and, since that date, both in England and this country, the business of insurance has been the subject of special legislative provisions. In this state it is the policy of the government to subject insurance business to the control of the state for the better security of policy holders. All persons and all organizations doing an insurance business are subject to severe restrictions, onerous conditions and the constant supervision of a department organized especially for that purpose. Wag. ch. 76. It has long been the law that no corporation shall transact any insurance business which does not deposit certain securities and comply with all the provisions of the insurance law. Wag. 744, § 22. In 1872, the superintendent of insurance called the attention of the government, in his annual report, to a supposed necessity of making the insurance law in express terms applicable to individuals, and also to associations of individuals professing to be friendly associations for mutual indemnity; and subsequently an act was passed, on March 28, 1874 (Acts 1874, p. 81, §§ 3 and 5), amending the general insurance law, and providing that no company, no individual, and no association of individuals, shall do an insurance business in Missouri, unless he or they have complied with all the insurance laws of the state. The policy of the state is clearly declared by these acts.