Stockley v. Benedict

Briscoe, J. delivered the opinion of the Court: The appellant is the receiver of the Peoples Mutual Live Stock Insurance Company, a corporation, created under the laws of the State of Pennsylvania, and incorporated for the purpose of insuring its members against loss arising from the death of domestic animals by disease or accident, and for that purpose to assess upon and collect from its members such sums of money as may be necessary to cariy on the business and to pay the losses incurred. The company continued to transact business until the second day of May, i-898,when, on application, it was declared by the Court of Common Pleas of Dauphin County, Pennsylvania, to be insolvent, and the appellant was duly appointed its receiver, who afterwards qualified as such. The appellees are co-partners, doing business under the firm name of Benedict Brothers, in the city of Baltimore, and during the years 1896, 1897 and 1898, secured insurance upon certain horses, to cover which the company issued to them five policies or certificates of membership for a term of years and upon certain conditions mentioned in the policies. Subsequently, on the 13th of September, 1898, the plaintiff was directed, as such receiver, by the Dauphin County Court, to levy an assessment upon the policies or certificates of mem ³³⁰ bership of the company for the purpose of paying the liabilities incurred by the company while the parties upon whom such assessments were levied were members according to a schedule therein prescribed, and this suit is brought to recover the sum of $212.12-100, claimed to be the assessment due by the appellees upon the policies held by them.

The case was tried in the Baltimore City Court upon an agreed statement of facts and other evidence offered at the trial. At the conclusion of the evidence on both sides four prayers were offered by the appellant, all of which were rejected without being passed upon, the Court giving the following instruction: “The plaintiff has offered no evidence legally sufficient to show that the defendants were parties to the proceedings in the Court of Common Pleas of Dauphin County, Pennsylvania, or that they are bound by any assessment levied under the decree of said Court therein, and the verdict should be for the defendants.” The verdict and judgment being against the plaintiff, he has appealed,- and the questions for our consideration arise upon an exception-to the rejection of the plaintiff’s prayers, and to the granting of the instruction given by the Court. We do not deem it necessary for the purposes of this case to determine all of the questions presented by counsel in their briefs, and which were so ably argued at the hearing. The sole question we are now called upon to decide is whether the appellees in this case were members of the appellant’s company at the time of the levy of the assessments, under the decrees of the Pennsylvania Court, and are as such liable to the receiver in this suit.

This question must be answered in the negative, because it is quite clear that, under the facts of the case, the policies held by the appellees had been forfeited, and were null and void by reason of the default in the non-payment of the assessment levied upon all the policies of the appellees, payable on or before April I, 1898. It will appear that by the express terms of the policies (Condition and Agreement 9), it was distinctly provided, if the ³³¹ policy shall become null and void by the non-payment of any assessment or dues levied upon the insured it can only be restored by the consent of the company in writing. The payment of the indebtedness existing at the time. of annulment shall not bind the company to restore the policy, nor shall a receipt for the same be considered a reinstatement, nor shall the signing of any health certificate or application for reinstatement, nor the filling of the same with the company or its agent, bind the company to restore the policy. And it is conceded, as part of the facts of the case, that on or ábout the first day of March, 1898, the insurance company levied upon all the policies of the defendants, an assessment of eleven dollars and one cent, payable on or before April 1, 1898 ; that this assessment was the last one levied by the company ; that it was paid on the 4th day of April, 1898, and the defendants made application for the reinstatement of their policies, but so far as could be ascertained, the company did not, between the date of the payment and the decrees of the Pennsylvania Court, reinstate in writing the policies which had been previously issued to the defendants.

It also appears that the conditional receipt, given by the agent of the company to the defendants for payment of the March assessment,