Swing v. Red River Lumber Company
| Decision Date | 28 June 1907 |
| Docket Number | 15,281 - (203) |
| Citation | 112 N.W. 393,101 Minn. 428 |
| Parties | JAMES B. SWING v. RED RIVER LUMBER COMPANY |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Hennepin county, Simpson, J., overruling a demurrer to the complaint. Affirmed.
Pleading -- Complaint.
In this, an action to recover upon an assessment of a policy holder of a mutual insurance company, it is held that the allegations of the complaint, which are stated in the opinion herein, are sufficient to constitute a cause of action.
Van Derlip & Lum, for appellant.
Tryon & Booth and Patterson A. Reece, for respondent.
This is an appeal from an order of the district court of the county of Hennepin overruling the demurrer of the defendant to the complaint in this action, which was brought to recover the amount of an assessment against the defendant for the payment of the liabilities of an insolvent mutual insurance company.
The allegations of the complaint are to the effect: That the Union Mutual Fire Insurance Company of Cincinnati, Ohio hereinafter referred to as the company, a corporation of the state of Ohio, incorporated May 27, 1887, was on December 18, 1890, duly adjudged to be insolvent, and the plaintiff was appointed trustee of the creditors and policy holders of the company by the supreme court of the state of Ohio, which had full jurisdiction of the parties and the subject-matter involved. That during the years 1888, 1889, and 1890 the statutes of Ohio applicable to the company provided as follows:
Every person who effects insurance in a mutual company, and continues to be insured, and his heirs, executors, administrators and assigns, shall thereby become members of the company during the period of insurance, 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 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, and the sum to be paid by each member shall always be in proportion to the original amount of such liability, and shall be paid to the officers of the company within thirty (30) days next after the publication of such notice.
If a member neglect or refuse, for a space of thirty (30) days after the publication of such notice, and after demand for payment, to pay the sum assessed upon him in (as his) proportion of any losses aforesaid, the directors may sue for and recover the whole amount of contingent liability, with cost of suit.
Such contingent liability shall not be less than three nor more than five annual cash premiums as written in the policy, but such liability shall cease with the expiration of the time for which a cash premium has been paid in advance, except for liability incurred during said time.
That the defendant received from the company and held five policies of insurance issued by it insuring the property of the defendant against loss by fire. That the policies were respectively of the number and amount, and in force for the periods, and for the agreed annual premium as follows: Policy No. 2,620, for $2,500, in force from June 14, 1889, to July 1, 1890; agreed annual premium, $75. Policy No. 2,945, for $2,500, in force from September 1, 1889, to September 1 1890; agreed annual premium, $50. Policy No. 3,009, for $2,500, in force from September 1, 1889, to September 1, 1890; agreed annual premium, $50. Policy No. 4,906, for $2,500, in force from July 1, 1890, to December 19, 1890; agreed annual premium, $75. Policy No. 5,281, for $5,000, in force from September 1, 1890, to December 15, 1890; agreed annual premium, $100. That during the periods in which the defendant held such policies losses and liabilities were incurred by the company...
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