49 Mo. 329 | Mo. | 1872
delivered the opinion of the court.
This was an action commenced before a justice of the peace to recover an assessment of $17.50 made by the plaintiff against the defendant, on a premium note for $70. The note specified that it was given for a policy issued by the insurance company, and was to be paid in such portions and at such times as the directors of the said company might, agreeably to the general incorporation laws of the State and the by-laws of the company, require.
Before the justice of the peace defendant obtained judgment, but on appeal to the Circuit Court, judgment was had for the plaintiff.
The only question of any importance in the case is the ruling of the court in admitting evidence. The plaintiff offered in evidence and the court admitted a copy of a resolution passed by the board of directors, by which an assessment of 25 per cent, was levied on all premium notes held by the company, to discharge the indebtedness of the company up to a certain date. The resolution was duly certified to by the president and secretary of the company, with the seal of the company affixed.-
The defendant objected to the admission of the resolution as evidence, on the ground that the plaintiff had not proved any loss sustained for which an assessment ought to be made, and on the further ground that a copy of the resolution was no evidence of any acts of the plaintiff; that the original ought to be produced or its absence accounted for. So far as the second point raised in the objection goes, the law settles it against the position taken by counsel. The statute in relation to evidence provides that copies of all records and papers on file in the office of any com•pany incorporated under the general or special laws of this State, when certified by the secretary or president and authenticated by the seal of said company, shall be received as prima facie . evidence in all courts of this State, in the same manner and with like effect as the original. (Wagn. Stat. 592, § 18.)
But the first objection raised presents a question of more difficulty. The case comes under the provisions of the law relating to fire insurance companies as contained in the General Statutes
These statutory provisions are essentially the same as exist in several of the States of this Union, and while they have never come up for construction heretofore in the Supreme Court of this State, they have often been passed upon by the courts of other States, and the adjudications are harmonious and uniform.
In Thomas v. Whallon, 31 Barb. 172, the charter of the company provided that the notes taken by it for premiums should be paid in whole or in part and at such times, as the directors should deem requisite for the payment of losses, and such incidental expenses as should be necessary for transacting the business of the company. By an amendment of the insurance law which applied to the company, it was provided that the directors should, after receiving notice of any loss or damage by fire sustained by any member, and ascertaining the same, * * * settle and determine the sums to be paid by the several members thereof as their respective portions, and that the same should be paid thirty days next after notice. And the court held that upon a proper construction of the foregoing provisions, the directors of the company had no arbitrary discretion in making assessments, but that it devolved upon it to aver and prove that the contingency had happened upon which the defendant’s liability had become absolute.
And to the same effect are all the cases that we have found in construing like statutes. (Bangs v. Gray, 2 Kern. 477; Herkimer County Mutual Ins. Co. v. Fuller, 14 Barb. 373; In re Bangs, 15 Barb. 264; Atlantic Ins. Co. v. Fitzpatrick, 2 Gray, 279; Long Point Ins. Co. v. Houghton, 6 Gray, 77; Savage v. Medbury, 19 N. Y. 32; Bangs v. Duckinfield, 18 N. Y. 592.)
The liability of the defendant is not an absolute liability to pay the whole amount of premium or deposit note, but it is conditional, depending upon the contingency of the happening of losses to which he shall be liable to contribute, and which has been ■ascertained by the directors, and the necessity of the payment of the whole or part of the note to satisfy the claim. The promise of the defendant is to pay upon certain conditions, and the existence of those conditions must be shown by the party seeking to enforce the contract. (Stow v. Wadley, 8 Johns. 124; Ferris v. Purdy, 10 Johns. 359.) Nor was the defendant liable at the mere discretion of the directors. There must have been actual losses or expenses before defendant was liable, as it was for these alone that he was liable, according to the very terms of his contract.
Does the mere passage of a resolution show a right to recover, •or should there not be other proof that the payment of the assessment was necessary to meet losses and expenses? To require further proof of the plaintiff is imposing ho impossible or unreasonable burden. The proof of the facts on which defendant’s liability rests is in the possession of the plaintiff and is easily made. But the other rule would cast the burden of showing negatively that there had been no such losses and expenses as
The judgment should he reversed and the cause remanded.
