156 Pa. 333 | Pa. | 1893
Opinion by
The plaintiff seeks to recover upon a policy of insurance against loss by fire. The action is defended on the ground that the policy is not now in force, because of the nonpayment of assessments made upon it. The policy was issued in September, 1884. The fire took place in 1890. All premiums and assessments due prior to 1888, it is admitted, were paid when demanded. It is alleged, however, and the jury have found, that an assessment made in 1888 for one dollar and seventy cents, and another made in 1889 for sixty-eight cents were unpaid when the loss occurred, and when this suit was brought. The question raised is, what is the effect of the nonpayment on the policy sued oil ? If we turn to the policy itself for an answer to this question, we learn only that, the insured having become a member of the company and complied with its rules and regulations, the company undertakes to insure her building in the sum of eight hundred dollars “ on the terms and conditions set forth in the constitution and by-laws.” But the by-laws are not before us. They were not attached to the policy and are notin the evidence. We have no means of knowing what terms and conditions the by-laws impose. But the policy further declares that the promise to insure is “ in consideration that she pays the amounts from time to time legally assessed upon her for losses.” Here again we encounter questions that the policy does not answer. What is necessary to a “ legal assessment ? ” What notice is a policy holder entitled to of the fact that an assessment has been made ? Within what time after notice must payment be made ? What shall be the consequence if payment is not made ? If nonpayment is a ground for canceling the policy, what action must the company take to relieve itself from liability upon it ?
We have no doubt the by-laws answer those questions, but unfortunately for the defendant the answers did not reach the
A discussion of the several assignments of error is, under this view of the case, unnecessary; but if they were really important to the decision of this case we should sustain some of them. The first assignment points out a plain mistake. The point embodied in it should have been affirmed. The insured was “liable to assessment for losses,” beyond any doubt, upon the face of the policy, but under what circumstances, and in what manner her liability must be enforced, the policy does not tell us. For this information we are referred “ to the terms and conditions set forth in the constitution and by-laws,” to which we have no access. The sixth and seventh assignments point out a palpable inconsistency between the charge of the court and the verdict, but the error of the court was in this particular in favor of the appellant, and could only be reviewed on an appeal by the other party. The judgment is right for the reason already given, and the errors to which we have adverted were harmless for the same reason.
The judgment is affirméd.