Lycoming Fire Ins. Co. v. Wright

• Decision Date: 27 January 1888
• Citation: 12 A. 103,60 Vt. 515
• Parties: LYCOMING FIRE INSURANCE CO. v. MEDAD WRIGHT & SON
• Court: Vermont Supreme Court

12 A. 103

60 Vt. 515

LYCOMING FIRE INSURANCE CO. v. MEDAD WRIGHT & SON

Supreme Court of Vermont

January 27, 1888

MAY TERM, 1888 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

SPECIAL ASSUMPSIT to recover three assessments upon premium notes. Plea, general issue. Trial by court, March Term, 1887, VEAZEY, J., presiding. Judgment pro forma for the plaintiff to recover the amount of said assessment, with interest from date, provided in the charter and by-laws for interest to be paid. Affirmed.

Judgment affirmed.

Senter & Kemp, for the defendants.

OPINION

TAFT

Before an insurance company located in a sister state can make a valid contract of insurance in this State, it must obtain from the secretary of state a license for that purpose, and it must be responsible by the laws of the state in which it is situated, or by its act of incorporation, or by contract in its policies, for the acts and neglects of its agents, as between the company and the assured and applicants for insurance. R. L. ss. 3610, 3618; 55 Vt. 526. Before receiving such license the company must file with the secretary of state a certified copy of its charter and by-laws, and a statement of its financial condition. R. L. s. 3610. Three questions are presented by the brief for the defendants.

I. Was parol evidence admissible to show the issuing of the license to the plaintiff. The loss of the license was shown. There was no law requiring a license to be recorded, or requiring the fact that one had been issued to be recorded; it was therefore competent to show the fact by parol.

II. The court found upon trial that a license had been issued to the plaintiff, and that prior thereto a copy of its charter with its financial statement was properly filed, but was unable to find that a copy of the by-laws had been filed with the secretary of state. It was obligatory upon the plaintiff before it was entitled to a license to file a copy of its by-laws. The license was issued. What the effect would be in case the fact was found that no copy of the by-laws was filed, we are not called upon to decide. It does not appear but that a copy was filed, and in the absence of all showing that it was not, we think the case calls for the application of the rule that acts which purport to have been done by public officers in their official capacity, and within the scope of their duty, will be presumed to have been regular and in accordance with their authority. He who alleges that an officer instructed with an important duty has violated his instructions must show it. 2 Best on Evidence Morgan's ed. 622, note 1; Ross v. Reed, 1 Wheat. 482; Delassus v. The United States, 34 U.S. 117; R. R. Co. v. Stimpson, 39 U.S. 448. In Waddington v. Roberts, L. R. 3 QB 579, an action to recover under a deed of composition, a question arose under the Bankruptcy Act 24 and 25 Vict. chap. 134. The deed under that act could not be lawfully registered unless accompanied by a prescribed affidavit. The objection was made that no proof was given that the affidavit which the statute required was filed; but the court said it would "be presumed until the contrary was shown that a public officer acting in execution of a public trust would do his duty, and therefore that the registrar would not have registered the deed unless it was accompanied by the necessary affidavit;" and see Grindell v. Brendon, 6 C.B.N.S. 698. In Missouri a foreign insurance company is prohibited from carrying on business until it has filed with the insurance commissioner a certificate stipulating that service may be made upon him; and where it is alleged in the petition that a foreign company is doing business in the state, it will be presumed that it has complied with the law; Knapp v. Ins. Co. U.S. Cir. Ct. E. D. Missouri, BREWER, J., 16 Ins. Law Journal, 798, Sept. 1887. It has been held in this State that a public officer, acting under the provisions of a statute, is presumed to have performed his duty until the contrary appears. U.S....