Swing v. Marion Pulp Co.

• Decision Date: 22 February 1911
• Docket Number: No. 6,909.,6,909.
• Citation: 47 Ind.App. 199,93 N.E. 1004
• Parties: SWING v. MARION PULP CO.
• Court: Indiana Appellate Court

47 Ind.App. 199

93 N.E. 1004

SWING

v.MARION PULP CO.

No. 6,909.

Appellate Court of Indiana, Division No. 1.

Feb. 22, 1911.

Appeal from Superior Court, Grant County; P. H. Elliott, Judge.

Action by James B. Swing against the Marion Pulp Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Todd & Rauch and P. A. Reece, for appellant. St. John, Charles & Gemmill, for appellee.

MYERS, C. J.

James B. Swing, as trustee for the creditors of the Union Mutual Fire Insurance Company of Cincinnati, Ohio, brought this action against the Marion Pulp Company, as a policy holder in said company, to recover an assessment alleged to be due and unpaid. The complaint, in substance, shows that the Union Mutual Fire Insurance Company of Cincinnati, Ohio, hereafter referred to as the “company,” on December 18, 1890, was disincorporated by a decree entered by the Supreme Court of Ohio, and on June 11, 1901, by a decree of that court defendant was assessed $290.80; that said company was a mutual fire insurance company incorporated under the laws of Ohio; that, at the time the policies to the defendant were issued, said laws in force provided that every person, who effects insurance in a mutual company and continues to be insured, shall thereby become a member of the company during the period of insurance, and shall be bound to pay for losses and such necessary expenses as accrue in and to the company, in proportion to the original amount of his deposit note or contingent liability, and fixing such contingent liability at not less than three nor more than five annual cash premiums as written in the policy; that, by reason of said policies held by the defendant, it incurred a contingent liability of five times the amount of its annual premium. The defendant answered in four paragraphs: First, general denial; second, it is admitted that the defendant contracted with said company for the policies named in the complaint; that said policies were issued by said company to the defendant. But in substance it is averred that at the time said contracts of insurance were entered into, and at the time of the final dissolution of said company, and at the time plaintiff was appointed as trustee to wind up its affairs, it was a foreign insurance company organized under the laws of the state of Ohio, and during all of that time, and continuously thereafter, the defendant has been and is now a resident of Grant county, in the state of Indiana; that said property named in said policies of insurance is located in Grant county, Ind.; that said contracts were made and said policies delivered to the defendants in said county and state; that, at the time said contracts were made and delivered to the defendant, said company had not complied with the laws of the state of Indiana relating to foreign insurance companies doing business in this state, nor has said insurance company at any time since the making of said contracts and the issuing and delivering of said policies complied with said laws of Indiana, wherefore said contracts are null and void. The third and fourth paragraphs averred that plaintiff's cause of action did not accrue in six and ten years, respectively. The plaintiff, for reply to the affirmative paragraphs of answer, admitted that at the time the policies referred to in the answer were issued, and thereafter until the date of dissolution and ouster of the company, it was a foreign insurance company incorporated under the laws of the state of...