dissenting.
I am not satisfied with the opinion in this case, because it seems to me that the three decisions, Burke v. Scheer, 89 Neb. 80, McCall v. Bowen, 91 Neb. 241, and the opinion herein are inconsistent with each other and leave the law very much in doubt.
It is sáid in the majority opinion that this case is ruled by McCall v. Bowen, and this is stated in the syllabus as the point of law decided. One reason is stated as determining that this case involves the same question as that decided in McCall v. Bowen, and two are stated as determining that it does not involve the question upon which Burke v. Scheer depends. None of these reasons, as it seems to me, can be applied at all. The first is that the statute governing this case provides: “All persons who effect insurance in any company organized under the provisions of this act shall-thereby become members of such company and continue to be during the period their insurance is in force, and no longer.” Laws 1897, cl). 45. sec. 3. A similar provision was held in McCall v. Bowen to constitute the policy-holders, as “members” of the *492company, liable jointly and severally for all of the liabilities of the company. This was in McCall v. Bowen made the test by which, to distinguish that case from Burke v. Scheer. If a member must contribute an indefinite amount, his proportionate share of all the -liabilities of the company, a court of equity alone can, upon an examination of the whole case, ascertain the amount of liabilities of the company and fix the proportionate share of each member. In such ease there is a joint liability and the action may be in equity, making all members of the company parties and adjusting the equities between them. This is the point decided in McCall v. Bowen. When the liability of the policy-holder is limited and fixed by the law or the contract, it is held in Burke v. Scheer the amount of the liabilities of the company and the liabilities of the policyholders are alike immaterial to him. He has a fixed amount to pay, and no more under any conditions of the? business. There are, therefore, it is there held, no equities between policy-holders and no joint liability or interest.
Section 3 of the act above quoted might by itself be considered to make policy-holders jointly liable for all debts of the company, as the similar provision was considered in McCall v. Bowen, if it were not otherwise especially provided in the act we are uoav construing. The amendment of the act in .1903 was for two purposes. It amends two sections. By section 697c, ch. 43, Comp. St. 1901, which was the tenth section of the original act, the company Avas not allowed to do business outside of the state, and could not do business in both cities and villages. That section was amended so as to allow the company to do business in both cities and villages in the United States. Section 69g, ch. 43, Comp. St. 1901, which was section 16 of the original act, provided: “No member, his or her heirs, executors, administrators or assigns, can avoid liability to such company for unpaid claims of the company accruing while a member.1’ By the amendment of this section in 1903 (Iravs 1903, ch. 48) it AAras provided that the company may in its by-laAVS limit the liability of its *493policy-holders for premiums or assessments to such sums as may he -agreed upon, and that it must make such limit of liability on all its policy-holders before going out of the state to do business. Pursuant to that requirement the company did make a by-law limiting the liability of its policy-holders to a specific sum, and the policy issued to the defendants specifically limited the liability of each defendant to a specified amount. This appears to bring the case at bar entirely within the decision in Burke v. Scheer, and this case cannot be decided as in the majority opinion without overruling that case. The reasons stated in the majority opinion for holding that Burke v. Scheer does not control in this case are that the legislature prescribed “the maximum of a member’s liability and the form of action by which payment of that liability could be enforced.” The statute plainly does both of these things in the case at bar. I have quoted above the statute in this case prescribing “the maximum of a member’s liability,” and the statute also provides that, if any member shall fail to pay the assessment “as stated in the application for insurance,” such company may sue for and recover such amount and costs. Comp. St. 1901, ch. 43, sec. 69j. If, therefore, the fact that a policy-holder may be sued for the amount specified in his- application and policy adds any reason for holding that there is no joint liability, and -no ground for equitable jurisdiction, we have it in this statute as well as in that construed in Burke v. 8cheer. Por my part I do not see how this fact adds anything, or, if Burke v. Scheer is right, that anything needs to be added to the fact that the statute we-are construing authorizes and requires that the policy-holder’s liability shall be limited and definitely fixed by the by-laws and policy, and that this was done in this case. This case, then, is not “ruled by McCall v. Bowen," but the decision is plainly inconsistent with Burke v. Scheer. This decision appears to me to leave the law still more in doubt than it was before.