Pacific Mut. Ins. Co. v. Guse

• Decision Date: 31 January 1872
• Citation: 49 Mo. 329
• Parties: PACIFIC MUTUAL INSURANCE COMPANY, Respondent, v. FREDERICK GUSE, Appellant.
• Court: Missouri Supreme Court

49 Mo. 329

PACIFIC MUTUAL INSURANCE COMPANY, Respondent,

v.FREDERICK GUSE, Appellant.

Supreme Court of Missouri.

January Term, 1872.

Appeal from Franklin Circuit Court.

Henry Flanagan, with J. Halligan, for appellant.

The court improperly admitted in evidence the copy of the resolution ordering an assessment. It was incompetent until after the plaintiff had offered proof to show that losses had been sustained for which an assessment was authorized to be made. The payment of the note was conditional, and not at the mere discretion of the directors. The resolution of itself was no evidence that the contingency had arrived upon which the defendant was liable to pay. (Gen. Stat. 1865, ch. 67, p. 358, § 20; American Ins. Co. v. Schmidt, 19 Iowa, 502; Thomas, etc., v. Whallon, 31 Barb. 172; Herkimer Mutual Ins. Co. v. Fuller, 14 Barb. 373; Atlantic Ins. Co. v. Fitzpatrick, 2 Gray, Mass., 279.)

J. R. Martin, for respondent.

The statute seems to make the directors the sole judges of the necessity of an assessment, clothed with discretionary power by law. They are at all events selected by the policy-holders themselves as the proper persons to exercise it, and are liable for its abuse. The members of the company are entitled by the statute (Gen. Stat. 1865, ch. 67, § 27) to an examination of the books, papers and general transactions of the company, upon application therefor to the secretary, and are in a situation at any time to protect their interests from abuse at the hands of their officers.WAGNER, Judge, delivered the opinion of the court.

This was an action commenced before a justice of the peace to recover an assessment of $17.50 made by the plaintiff against the defendant, on a premium note for $70. The note specified that it was given for a policy issued by the insurance company, and was to be paid in such portions and at such times as the directors of the said company might, agreeably to the general incorporation laws of the State and the by-laws of the company, require.

Before the justice of the peace defendant obtained judgment, but on appeal to the Circuit Court, judgment was had for the plaintiff.

The only question of any importance in the case is the ruling of the court in admitting evidence. The plaintiff offered in evidence and the court admitted a copy of a resolution passed by the board of diretors, by which an assessment of 25 per cent. was levied on all premium notes held by the company, to discharge the indebtedness of the company up to a certain date. The resolution was duly certified to by the president and secretary of the company, with the seal of the company affixed.

The defendant objected to the admission of the resolution as evidence, on the ground that the plaintiff had not proved any loss sustained for which an assessment ought to be made, and on the further ground that a copy of the resolution was no evidence of any acts of the plaintiff; that the original ought to be produced or its absence accounted for. So far as the second point raised in the objection goes, the law settles it against the position taken by counsel. The statute in relation to evidence provides that copies of all records and papers on file in the office of any company incorporated under the general or special laws of this State, when certified by the secretary or president and authenticated by the seal of said company, shall be received as prima facie evidence in all courts of this State, in the same manner and with like effect as the original. (Wagn. Stat. 592, § 18.)

But the first objection raised presents a question of more difficulty. The case comes under the provisions of the law relating to fire insurance companies as contained in the General Statutes of 1865, pp. 357-9. Section 16 provides for persons becoming members of the company, regulates the manner of taking premium notes, specifies the amount to be paid down, and then says that the remainder of the notes “shall be made payable, in part or in whole, at any time when the directors shall deem the same requisite for the payment of losses or other expenses or purchases.” Section 20 empowers the board of directors of every mutual insurance company, in order to settle the losses sustained by fire and the expenses of the company, to make an assessment or assessments, at convenient times, wherein they shall determine the sums to be paid by the several members of the company; and section 26 gives the board of directors power to make an assessment or assessments as often as they deem it necessary to meet the liabilities of the company, and provides that the assessments shall be made payable within thirty days, and that they may also include the necessary incidental...