89 Pa. 296 | Pa. | 1879
delivered the opinion of the court, May 5th 1879.
The company defendant in error was incorporated under the Act of 1856, “for the purpose of insuring all kinds of buildings, merchandise and other property against loss by fire on the mutual principle exclusively.” Mutuality of obligation is of course the very essence of the principle. While the company, on the one hand, undertakes to pay or make good the losses, the insured, on the other, agrees to contribute his proportionate share of current expenses and losses happening during the life of his policy. Their respective promises are mutually dependent upon each other. The undertaking of the one is the only consideration for that of the other. It would be unreasonable therefore to contend that there could be any liability on the part of the company to the insured for the loss of his property, unless he at the same time had paid or assumed to pay his proportionate share of expenses and the losses sustained by other members. The principle upon which the system of mutual insurance rests is utterly inconsistent with any such proposition. The plaintiff in error had neither paid nor agreed to pay any premium or fees, nor had he in any manner assumed the payment of his share of expenses and losses. In fact he had entered into no contract whatever. There was nothing on which the company could have sustained an action against him on an assessment to pay losses, or anything else. At most, he had merely made application, not in person, but through Scheirer, for insurance and membership in the company, without as yet having complied with
The assignments of error are not sustained, and the judgment is therefore affirmed.