St. Louis Mutual Fire & Marine Ins. v. Boeckler

19 Mo. 135 | Mo. | 1853

Gamble, Judge,

delivered the opinion of the court.

The defendants having given their note to pay the plaintiff the sum of $150, “ in such portions, and at such time or times as the directors of said company may, agreeably to their act of incorporation, require,” several points have been presented in their behalf for the reversal of the judgment, which was given against them for the whole amount of the note.

1. It is insisted that, by effecting insurance with the plaintiff, the defendants became members of the company during the continuance of their policy and no longer, and that, after they ceased to be members, no assessment could be made against them, even on account of losses happening -while they were members.

It is true that, by the second section of the charter, a person effecting insurance with the company continues a member only so long as the policy lasts, but such membership is not a necessary ingredient in the liability of those who have given their notes to the company on becoming members. The notes bind the parties who are makers to pay the money on calls made in pursuance of the charter, and the tenth section of the charter provides that, “ at the expiration of the term of insurance, the note or such part of the same as shall remain unpaid after deducting alt losses and expenses accruing during said ¿¿me, shall be given up to the signers thereof. The note is to be given up at the expiration of the policy, after deducting losses and expenses happening during its continuance. The note continues obligatory, so far as losses happened during the term of insurance. The twelfth section makes every member responsible for his proportion of losses happening to the company. These defendants were liable to the company for their, proportion of the losses happening while they were members, and they were entitled to have their note surrendered, only when their proportion of those losses was paid. The finding of the court is, that a large per cent, of the amount of the note was required to pay such losses. The 18th section directs the proceedings to be adopted by the directors in making assessments upon the members to meet losses. Although the word “ member” is used in the section, it embraces, by the context of the section, all who have become members of the company by insuring therein, and who are liable for a proportion of losses occurring while their insurance continued, whether their membership has ceased or not. The assessment for losses may then be made after the membership ceases.

2. It is insisted that the finding by the law commissioner does not show that notice of the assessment made upon defendants’ note, was duly published. The 18th section requires that, after a loss occurs, the directors “ shall settle and determine the sum to be paid by the several members, as their respective proportion of said loss, and publish the same in such manner as they shall see fit, or as the by-laws may have prescribed, and the sum to be paid by each member shall always be in proportion to the amount of his premium note, and shall be paid to the treasurer within thirty daps next after the publication of said notice. The record shows that the parties have agreed that the case shall be determined upon the facts found by the law commissioner and his conclusions of law pronounced thereon. He finds nothing about by-laws in relation to notice, and he finds a publication of notice which conforms to the charter. The question as to the conformity of the notice to a by-law does not arise on the finding.

3. The defendants claim that, having tendered the amount now assessed, upon condition that their note should be surrendered to them, they were not liable to this action, although the finding of the court shows that there are still other losses which happened during the period of the defendants’ insurance, for which no assessments have yet been made.

When we determine that the defendants continue liable upon their note for their proportion of losses happening while their insurance continued, and that assessments for such losses may be made after the expiration of their policy, it follows that they were not entitled to their note, until all the losses for which they were liable were satisfied, and consequently, their tender was upon a condition they had no right to impose,

4. It is insisted that judgment was improperly rendered for the whole amount of the note, after deducting a payment of fifteen dollars, made when the insurance was first effected.

The 18th section of the charter expressly provides that, upon a failure to pay any assessment upon a note, the whole amount of the note may be recovered in an action upon it, and that the amount thus recovered shall remain in the treasury of the company, subject to the payment of losses that may thereafter accrue, and the balance, if any, shall be returned to the party from whom it was collected, on demand, after thirty days from the term for which insurance was effected. There are several provisions of this charter which appear to be incongruous. It is evidently the design of some of the sections to make every person insuring in the company a partner or member — responsible for his share of losses happening while he was a member, and yet it is plainly within the contemplation of other sections, that his liability should be ascertained and settled within the period of thirty days from the expiration of his policy. We take the chief design of the act to be, to form an association for mutual indemnity, in which each member shall be liable for his proportion of losses happening while he continues a member, enjoying tbo benefits of the indemnity against loss on his part, and that the provisions about time are secondary and subordinate to this main design of the act. Construing the act, then, ‘‘ liberally to effect the ends and purposes thereby intended and contemplated,” as we are directed" in the 27th section, we hold that a party failing to pay an assessment, when made, is liable to pay the whole amount of his premium note, notwithstanding the provision that the note is to be returned to him on demand, after thirty days from the expiration of his policy.

The judgment is, with the concurrence of the other judges, affirmed.