17 Pa. Super. 110 | Pa. Super. Ct. | 1901
Opinion by
This was an action of assumpsit brought by the receiver of an insolvent live stock insurance company to recover from the defendant the amount of certain assessments levied to pay certain losses incurred while the defendant was a member of the company; these assessments being part of a general assessment levied by the receiver upon all policy holders, by virtue of a decree of the court of common pleas of Dauphin county.
The defendant alleged in his affidavit of defense that “ the policies of insurance attached to and made part of plaintiff’s statement of claim are cash policies, and not assessable policies, and, therefore, that the sum of $1,137.24, claimed from defendant as assessments upon the policies aforesaid is not legally due and owing from defendant to plaintiff, and cannot in law be recovered as such.”
1. Before considering the other averments of the affidavit of defense, it will be well to determine whether the policies, on their face, are assessable policies. In the determination of this question we recognize the principle declared in Given v. Rettew, 162 Pa. 638, that where an insurance company, although organized upon the mutual plan, has the power to issue cash policies, the mere fact of membership does not necessarily imply liability to assessment. Going, then, to the defendant’s application, we find that it was made, “ subject to all limitations, conditions and requirements of the constitution and by-laws, all of which are hereby made part of the contract or policy to be issued on this application.” Article 5 of the constitution provides as follows: “ The plan is mutual, and all losses and expenses shall be paid by assessments levied on the members or policy holders of the company.” Article 1 of the by-laws is as follows: “ This is a mutual insurance company in which all policy holders are members. The expenses and losses properly certified and approved by the board of directors shall be paid by assessments levied by the board of directors upon the members or policy holders of the com
We find nothing in either the constitution or the by-laws which gives warrant for the supposition, that the plan of insurance adopted by this company contemplated a special contract with an individual member and policy holder limiting his liability to a fixed sum, whilst other members and policy holders were liable to assessment for losses as they might occur. Nor do we think the contracts in question are to be so construed. Each of the policies, after describing the animal insured, and reciting the fact that the defendant had made application for insurance and had paid the entrance and first mortuary fee, further recites, that he “ has agreed to pay or cause to be paid all such premiums or payments required, or agreed to be made now or hereafter, in connection with this insurance as may be specified in the constitution and by-laws of the aforesaid company, per table of rates, and referred to in the application made for this insurance, and which application, constitution and by-laws are a part of this contract.”
It is seen from the foregoing, that the defendant’s liability does not rest alone upon a contract implied from mere membership in a mutual company. There was, in addition, an express contract on his part to pay all such premiums or payments as were “ specified ” in the constitution and by-laws, and “ referred to” in the application. The only premiums or payments “referred to ” in the application were the admission or first mortuary fee and those required by the constitution and by-laws, and the only premiums or payments “specified” in the constitution and by-laws were an admission premium of four per cent on the estimated value of the animal insured, and the assessments to be made from time to time to pay losses and
2. The defendant avers further, that before he consented to take out these policies and as the inducement for his so doing, the plaintiff (evidently meaning some officer or agent of the plaintiff) exhibited to him a “ table of rates ” of insurance and assured him that the only payments which would be required
In his application the defendant declared, quoting therefrom, “ that the policy to be issued hereon shall be based entirely on the statements and declarations made in this application, and not upon any statements or promises made by or to the solicitor or other.person professing to represent said company.” There is no allegation that lie was induced by any fraud to sign this application or that he was ignorant of the terms of the policies, including the provisions of the constitution and by-laws, when he accepted the policies. Whether or not he knew of those provisions prior to the issuance of the policies, he was certainly affected with notice of them after they were issued, and during the whole period of two years between the issuance thereof and the appointment of the receiver, and this he does not deny.
We need not stop to inquire as to the validity of this defense in a suit brought by the company in which the rights of subsequent policy holders would not be affected. We may remark, however, that as there is no allegation that anything was said or done at the time the defendant accepted the policies, which can be regarded as a misrepresentation of the contents of the instruments, or which put him off his guard and induced him not to look into them, it is difficult to see upon what ground he can ask to have them reformed and converted from assessable into nonassessable policies. For, a man cannot ask to be relieved from his written contract upon the ground of mutual mistake, or of fraud practiced upon him in the execution or acceptance of the paper, without specifically alleging facts from which the mistake or fraud may be clearly and indubitably inferred. “A fortiori is this true, where he has failed to exercise the most common prudence, has accepted and en
Judgment affirmed.