Sparks v. Flaccus Glass Co.

16 Pa. Super. 119 | Pa. Super. Ct. | 1901

Opinion by

Rice, P. J.,

This was an action to recover the amount of an assessment made by the board of directors of a mutual fire insurance company. The action was upon the contract contained in the policy, of which the by-laws formed a part, not upon the resolution. Copies of the instruments, namely, the policy and the by-laws upon which the action was founded were attached to the statement, and the facts are clearly and concisely averred therein that the losses and expenses of the plaintiff company during the time the defendant’s policy was in force necessitated the assessment, that it was duly made by the board of directors on a day named, and that due notice thereof was given the defendant. This was a sufficient statement of a good cause of action, without attaching a verbatim copy of the resolution and a detailed and itemized statement of the losses and expenses which necessitated the assessment: Fidelity Mut. Fire Ins. v. Industrial Brick Co., 12 Pa. Superior Ct. 404; Fidelity Mut. Fire Ins. Co. v. Hancock, 9 Pa. Superior Ct. 480; Fidelity Mut. Fire Ins. Co. v. Vitale, 10 Pa. Superior Ct. 157. The suggestion contained in the affidavit of defense that the statement was not sufficient in law to entitle the plaintiff to judgment was in the nature of a demurrer,, and was not equivalent to a motion for a bill of particulars. Such demurrer raises a pure question of law, whilst the latter motion is addressed to the discretion of the court. Treating the suggestion as a demurrer, the court committed no error in overruling it.

It was stipulated in the policy that, “ by accepting this policy, the assured hereby agrees to pay to said insurance company such further sums ” (in addition to the cash premium) “ and at such times as the board of directors shall assess and order pursuant to the charter, the by-laws and laws of this state, providing such assessment shall not exceed three times the annual premium paid. Article 18 of the bj'-laws provides that each member shall pay into the treasury of the company such assessments as may be levied, “ and charged to their account on the books of the company,” within thirty days from the date thereof. Article 15 provides that a member may withdraw from the company at any time before the expiration of his policy, provided the policy is returned to the company for cancelation, “ and if all charges standing against said policy holder shall have been paid.” Article 16 provides that members whose policies have been canceled or expired “shall be liable to assessment for losses and expenses incurred during the time the policy was in force,” subject to the limitation expressed in article 14, namely, that “such assessments shall not exceed the amount of three annual premiums on any one policy.” At the time the defendant withdrew from the company and surrendered his policy for cancelation, this assessment had.not been levied and charged against the defendant on the books of the company. It was not one of the “ charges ” referred to in article 15 which must be paid as a condition precedent to withdrawal. To hold that because the company permitted the defendant to withdraw — a thing it could not prevent — the company is estopped to deny that the defendant was thereby discharged from all liability for losses incurred during the life of the policy would nullify article 16. The proposition is so clearly erroneous that it will not bear discussion.

There is much irrelevant matter in the affidavit of defense. • The substance of the defense is contained in the following paragraph:

“ That the placing of said insurance by the plaintiff upon the mutual assessment plan, was a' fraud, accident or mistake practiced by said plaintiff company upon the defendant, because as deponent is informed, believes, and expects to be able to prove, the plaintiff promised and agreed to issue said renewal policy as a “ nonassessable policy ” and have the word “ nonassessable ” stamped on the face of the policy, which fraud, accident or mistake practiced upon defendant by plaintiff was not discovered by the deponent at the time said policy was accepted by deponent, and that the plaintiff had not complied with its promise and agreement to issue a nonassessable renewal policy to deponent and have the same stamped in a manner precisely similar to the original policy which contained the nonassessable clause.”

We remark with regard to these averments, that if the defendant did not discover that the word “ nonassessable ” was not stamped on the face of his policy, it was because he did not look at it. It was not necessary for him to read conditions in fine print to learn that it was not the same kind of a policy he had had the year before. A mere glance at the face of the policy would have been sufficient to give him the knowledge he needed. Under all the circumstances of this case, this was a duty. For, it is to be noticed, that there is no allegation that anything was said or done at the time he accepted the policy, which can, by any ingenuity, be twisted into a misrepresentation of the contents of the instrument, or which put him off his guard and induced him not to look at the face of the policy. The averment as to a prior promise or agreement is indefinite as to time, and, as to the officer or agent of the company that made it. If, as there is strong reason for surmising, the agreement, pursuant to which the policy for the preceding year was issued, is the one referred to, it was clearly irrelevant. Still more clearly irrelevant was the defendant’s inference, if that is what he means, that the original agreement under which the insurance was placed on his property became, ex proprio vigore, the agreement that was to control in the issuing of any subsequent policy. If that was not the defendant’s purpose in introducing the averments as to the agreement under which the first policy was issued, we fail to see their relevancy, and even for that purpose they were irrelevant. But without indulging in further speculation as to the possible meaning of the defendant’s averment relative to the renewal, this much is clear, that he does not aver, that, at the very time the policy was issued and accepted by the defendant, any officer or authorized agent of the company represented or agreed that it was a nonassessable or a limited'assessment policy. The policy was issued on September 28, 1897. After having had the benefit of the insurance for three months and a half upon the clear and unambiguous terms specified in the contract, which he had in his possession all the time, the defendant returned the policy for cancelation and paid the earned portion of the cash premium. He thus accepted a second benefit secured to him by the policy, namely, the right to be discharged from payment of the balance of the premium. In,the mean time the rights of other policy holders had attached. It is not pretended that they had any knowledge or notice that the policy issued to the defendant did not express the true agreement of the parties.

It must be conceded that in many respects the case resembles Ins. Co. v. Brick Co., supra, but the cases are not parallel in all their controlling facts. In principle the case is more nearly like Susquehanna Mutual Fire Ins. Co. v. Oberholtzer, 172 Pa. 228. Written contracts are presumed to express the real agreements of the parties, and are not to be lightly set aside on vague allegations and uncertain inferences of fraud. 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 enjoyed the full benefits of the contract, and the rights of innocent third persons will be prejudicially affected, as is the case hére.

Judgment affirmed.