53 S.E. 853 | N.C. | 1906
Plaintiff sued to recover amount of premiums paid defendant company, $2,314, on account of assessments upon a policy of $25,000, which he alleges was wrongfully and, in violation of terms of the contract, canceled by defendant. He remitted the excess over $2,000. After setting forth the facts upon which his alleged cause of action is (118) based, he alleges that defendant having, in compliance with the laws of this State, appointed an agent upon whom service of process could be served, fraudulently and for the purpose of preventing suits being brought in the courts of the State, attempted to cancel its power of attorney. That plaintiff's policy was issued while said power of attorney was in force and while defendant was engaged in soliciting business and issuing policies in this State. That defendant has now in force a large number of policies issued to citizens and residents of this State and that it is collecting assessments or premiums on said policies. That for the purpose and with intent to defraud its North Carolina policyholders, defendant is taking from the State and the jurisdiction of the courts its assets and property. That the Insurance Commissioner of this State has prepared and published a statement showing that the affairs of defendant company are badly managed, that judgments against it for large amounts are unpaid and outstanding. That from said publication and other sources set out in his affidavit plaintiff believes that defendant company is insolvent or in imminent danger of insolvency. For the reasons and upon the grounds thus set forth plaintiff asks that a receiver be appointed by the court to take into his possession a sufficient amount of the property and assets of defendant in this State to satisfy and discharge his claim, etc. An order was duly issued directing defendant to show cause before the judge presiding in the Ninth Judicial District why a receiver should not be appointed as prayed, etc.
The defendant company on the return of said order filed an answer and affidavits in support thereof, denying the material allegations contained in plaintiff's complaint and affidavits. Defendant also denied that it owned any property or assets in this State, and averred that no person residing in this State was indebted to it. That the payment of the assessments made upon policyholders was voluntary, and that by the express terms of the policy, a copy of which is set out, the holder (119) assumes no personal liability for the payment of said assessments. That by the terms of said policy failure to pay the assessment works a forfeiture thereof, but imposes no other liability upon or against the holder. That said assessments are due and payable at the home office of defendant company in New York. It denies that it is insolvent or in imminent danger of becoming so, setting forth a statement of its assets and liabilities. It avers that it canceled the power of attorney to its agent without any other purpose than to cease doing business in the *117
State and without any intent or purpose to defraud its creditors or policyholders. His Honor, upon hearing the answer and affidavits, declined to appoint a receiver. Plaintiff appealed.
In view of the admitted facts in regard to the property rights, or rather absence of such rights, within the jurisdiction of the courts of this State, we are relieved from the necessity of discussing the affidavits in regard to the management and solvency of the defendant company. Assuming that, upon the facts stated in the complaint, in the light of the decisions of this Court in which the same defendant was a party, plaintiff has a valid cause of action, and assuming that defendant is in danger of becoming insolvent, we find ourselves confronted with the difficulty in granting the motion for a receiver by the fact that the company has no assets within this State which could be taken into possession of such receiver. The only rights suggested by plaintiffs in this connection are assessments to become due hereafter from policyholders residing in this State. These assessments will not be, when due, debts or choses in action which the defendant could enforce. "The levying of an assessment does not make a member a debtor to the association, authorizing it to bring suit in the event of his neglect or (120) refusal to pay; the only effect of the default is to relieve the association of its obligation to the member." Cooley on Ins. Briefs, 1013;Ins. Co., v. Stathan,
For the reasons set out, his Honor's judgment must be
Affirmed.
Cited: Brenizer v. Royal Arcanum, post, 424.
(123)