Skinner v. Wilhelm

• Decision Date: 11 November 1886
• Citation: 30 N.W. 311,63 Mich. 568
• Court: Michigan Supreme Court
• Parties: SKINNER v. WILHELM.

30 N.W. 311

63 Mich. 568

SKINNER v. WILHELM.

Supreme Court of Michigan

November 11, 1886

Error to Grand Traverse.

Mark Norris, for plaintiff and appellant.

Pratt Hatch & Davis, for defendant.

SHERWOOD J.

This case was an action of assumpsit brought by the plaintiff, as receiver of the Michigan Mutual Fire Insurance Company against the defendant, one of the policy-holders and members of the company, to recover an assessment of $185, and interest thereon. The assessment was for the purpose of paying the losses and debts of the company, and the expenses of the receivership. Defendant pleaded the general issue. The cause was tried at the Grand Traverse circuit before Judge RAMSDELL without a jury, and went for the defendant. Plaintiff brings error. The only evidence put in the case was that offered by the plaintiff.

The record presents a bill of exceptions containing the findings both of the facts and the law. The findings of fact are substantially as follows: On the first day of February, 1884, the insurance company was duly organized under and had complied with act No. 175, Laws 1883, except filing in the Kent county clerk's office a copy of the charter, and was, if said act is constitutional, at that date a legally organized company under that statute, and engaged in business in this state, duly authorized by the commissioner of insurance so to do, under the law of 1883. That on the second day of February, 1884, the company accepted the defendant's application for insurance of his property to the amount of $2,500, and, taking his premium note therefor executed to him a policy upon such application, No. 1,762. That, after said policy was issued, the company sustained losses under 34 of its policies, aggregating $20,664.39 as adjusted and settled, and which were all due and payable at the time of making the assessment against the defendant, and that said losses were the only ones for which defendant was assessed, but not all for which the company was liable at the time the assessment was made. That August 22, 1884, the company had for a long time failed to meet its liabilities. On that day the commissioner of insurance filed his bill under act 175, Laws 1883, against the insurance company, in the Kent circuit, praying for the appointment of a receiver for the company, and the settlement of its affairs. That the plaintiff was then secretary of the company. That said bill was taken as confessed, and the plaintiff, on August 25th was duly appointed receiver, and subsequently qualified and entered upon the discharge of the trust. The only assets which came into his hands were the premium notes of the members of the company, and a small quantity of office furniture and books of the company. That the company then owed for losses and expenses $29,500. That in October, 1884, the receiver made an assessment on all policy-holders; the sum assessed aggregating in amount the sum of $47,973, and being made up as follows: For unpaid losses, $29,500; for the estimated expenses of the receivership, $5,000, and for overlay; as estimated allowance for uncollectible assessments, $13,473. Each policy-holder was assessed his pro rata share of these amounts accruing while he was such member. That there is nothing in the by-laws of the company relating to the manner in which assessments may be made to pay losses and expenses. That, after making the assessment sued for, the...