121 Minn. 221 | Minn. | 1913
The Union Mutual Eire Insurance Company was a mutual in
The by-laws of this corporation provided that any person wishing to become' a member of said company should deposit with the secretary an application, together with a premium note of such amount as might be required by the board of directors, and should pay 20 per cent of said note in cash previous to the issuance of a policy; that such deposit note should continue in force during the-life of the policy for which it was issued, and should be subject to-assessment for losses and expenses. It- was further provided that “no member shall be liable for losses or expenses, or for any indebtedness of the company in any amount, except to the,extent of' the premium notes given by him.” It is further alleged, and the,court found, that on the first day of July, 1889, defendant applied to said insurance company for insurance on its mill property, and executed and delivered its premium note in the sum of $687.50, and soon thereafter made the first payment of $137.50; that said company on said day issued to defendant its policy of insurance No. 2,652 in the sum of $5,000. The court further found that on November 14, 1889, defendant paid an assessment of $27.50, and on November 3, 1890, an assessment of $137.50.
On June 11, 1901, the Supreme Court of Ohio made a decree “that the following assessments shall be made against all persons-who hold policies of insurance in said company.” The decree then determined the amount of unpaid liabilities according to their accrual by quarterly periods, and fixed the per cent of assessment against every policy in force during these respective periods. It provided that all persons who, without being sued for them, paid their assessments in accordance with the decree, should have rebated to them one-third thereof, and the trustee was given full power
On March 25, 1902, the trustees sent by registered mail to each policy holder a notice of this assessment, which notice stated in detail the amount such policy holder was obliged to pay on every policy he had in force, and also the amount that every other policy holder was obliged to pay, and contained the words: “You are required by law to pay within 30 days from this date, viz., March 22, 1902.”
The amount of this assessment for the period during which defendant’s policy was in force was 86.0003 per cent of the face of its premium note. The trial court held that defendant was liable for such percentage, amounting to $591.25, and judgment was entered accordingly. Defendant appeals.
Plaintiff offered for this purpose the policy register of the company. This contains entries showing the issuance of policy No. 2,652, the date thereof, the original amount thereof, the amount of the premium note, the amount that it was reduced by fire, and the amount of insurance remaining in force. Plaintiff contends that the policy register is competent evidence of these facts. He invokes the rule applied to stock corporations that, where the name of an individual appears on the stockbook of a corporation as a stockholder, that fact establishes prima facie his relation as a stockholder in an action against him to enforce a stockholder’s liability. Holland v. Duluth Iron Mining & Development Co. 65 Minn. 324, 68 N. W. 50, 60 Am. St. 480; Turnbull v. Payson, 95 U. S. 418, 24 L. ed. 437. It is unnecessary to determine whether this rule is to be so extended as to make a policy register of a company such as this evidence in an action of this
“Herewith returned as requested,
Prem. Expires
2652 General Form $5,000.00 $137.50 July 1, 1894
“Kindly give us proper credit for return premium and forward note to us at once and oblige.”
This testimony constitutes an admission in writing of the essential parts of the policy and of the premium note.
Some controversy has existed in the past as to whether the contents ■of a written instrument may be proved against a party by his own admissions, and the question has not heretofore been decided in this state. Webster v. Ferguson, 94 Minn. 86, 91, 102 N. W. 213. The weight of authority is to the effect that such proof is competent. Slatterie v. Pooley, 6 M. & W. (Eng.) 664; 2 Wigmore, Evidence, § 1255 et seq. This rule is sound in principle, at least when the admissions are in writing, as they are in this case. We hold that a written admission of the contents of a written document may be established against the party making the admission, without production of the document or accounting for its nonproduction. This evidence is in this case ample and conclusive, without resort to the policy register at all.
The material language of the decree is above stated. This language manifests a clear intent that the decree itself shall constitute the assessment, and it contains all the necessary elements thereof. It is true the decree did not compute the amount to be paid by each policy holder. But it fixed the per cent which each must pay. The amount of the assessment could be ascertained in any ease by mere-mathematical calculation. This is the view that this court has heretofore taken of this same decree. It was before the court in Swing v. Barnard-Cope Mnfg. Co. 115 Minn. 47, 131 N. W. 855. In that case the court said: “In effect that decree levied assessments, on the policy holders to pay the debts of the company. * * * The decree made the liability of the policy holders absolute. It gave a cause of action to the receiver against each policy holder for the amount of his assessment.”
Defendant contends that the notice of assessment was invalid.
It is contended, however, that notice by mail was not a compliance with the statutes of Ohio. Sections 3650 and 3651 of the Revised Statutes of Ohio, as amended by Act April 14, 1888 (85 Ohio. Laws, p. 273), are in evidence. Section 3650, as so amended, provides in-respect to assessments:
“The directors shall, as often as they deem necessary, settle and determine the sum to be paid by the several members thereof, and publish the same in such manner as they may choose, or as the bylaws prescribe.” * * *
Section 3651, as so amended, provides that: “If any member neglect or refuse for the space of thirty days after the publication of such notice, and after demand for payment, to pay the sum assessed upon him, * * * the directors may sue for and recover the whole amount of contingent liability.”
It was held in Swing v. Wurst, 76 Minn. 198, 79 N. W. 94, that these sections applied to an assessment made by a receiver, and that they contemplated a “publication” in some manner of'the notice of assessment. It is contended that the mailing of the notice was not a “publication.” It is unnecessary to determine whether it was or not-, for it appears from the evidence in this cáse that the amended sections 3650 and 3651 have no application to this proceeding. Section 2 of
j, “This act shall not affect companies now doing business on the premium note plan, unless they elect to dispense with said notes and «embody the contingent liability in the policy as herein provided; and «said original sections * * * 3650 and 3651 * * * are hereby repealed: Provided, that said sections shall remain in force as to «all mutual companies now doing business, which do not elect to reorganize under said sections as amended by this act.”
This company did not so reorganize. Swing v. Humbird, 94 Minn. 1, 4, 101 N. W. 938; Swing v. Red River Lumber Co., 105 Minn. 336, 117 N. W. 442. The original and not the amended sections accordingly apply to, this company' and to this proceeding. But the original sections are not in evidence. We can assume nothing as to their contents. There is, accordingly, no statute of Ohio in evidence which in any way prescribes the manner of giving the notice that was given in this proceeding.
Judgment of tbe trial court will be modified to tbat extent. As so modified, tbe judgment appealed from is affirmed.