People's Fire Insurance v. Hartshorne & Co.

Mr. Justice Sterreti delivered the opinion of the court, The judgment entered by the plaintiff pursuant to the provisions of its charter was opened and the defendants let into a defence. The question for the jury was how much, if anything, was due by the defendants to the company. It was substantially upon this issue the case was tried and submitted to the jury. When the defendants became members of the company they submitted themselves to the action of the directors, as their representatives, and were bound by all the assessments made by the board, unless they could show that they were illegally made, that there was either fraud or gross mistake. The presumption is that the directors, representing the members of the company, made the assessments properly. The secretary’s certificate as to the assessments is prima facie evidence of their correctness, but it may be rebutted by showing either fraud, illegality or gross mistake in making the assessments. The offers of evidence to which the first and second assignments relate were made for that purpose, and we cannot say that the testimony was irrelevant. It might be impossible to show illegality or gross mistake in particular assessments, if testimony as to previous losses, assessments'and revenues of the company was excluded. The company has a right to rely in the first instance on the prima facies of the secretary’s certificate. The onus of rebutting it, by proving illegality or gross mistake is on the defendant, and for this purpose great latitude should be allowed. If the transactions of the. company have been fair and legal, its records will exhibit the fact, and no injury can result from an examination of its affairs. It was claimed moreover by the plaintiff that defendants were liable to assessment for losses and for money borrowed or advanced to pay losses Avhich occurred before they became members of the company. To meet this position they were entitled to introduce testimony as to previous losses and assessments made to meet the same. The defendants alleged and endeavored to prove that the receipts of the company from assessments, premiums, &c., very largely exceeded its aggregate losses and expenses. The court instructed the jury that defendants were not liable for assessments to pay losses or expenses that accrued prior to May 4th 1869; that they were not members of the company prior to that date, and not bound to pay any such losses and expenses. The essential principle on which mutual insurance companies are organized, is that each member will pay his proportionate share of expenses incurred, and losses which happen during the period of his membership. The plaintiff has no reason to com [471] plain of the instruction given. While it claimed the right to assess for losses and money borrowed to pay losses that occurred before defendants became members, the plaintiff disclaimed having exercised the right; and alleged that they were assessed only for losses which occurred during their membership. The court was requested to charge that “ on the pleading and evidence in the case, the verdict should be for the plaintiff, for the interest due on the note, the assessments claimed and interest thereon from the time they were severally payable.” The court refused to affirm the point, saying: “ the extent of the liability of the defendants must be determined by the jury from the evidence.” There was no error in this. To have affirmed this point as presented, would have been a binding instruction to the jury to disregard all of defendant’s testimony, and render a verdict for the full amount of plaintiff’s claim. This was asking too much. The plaintiff was not entitled to such sweeping instruction as this, when there was some testimony at least for the consideration of the jury. In the concluding part of his charge, the learned judge instructed the jury to determine from the evidence what portion, if any, of the assessments the plaintiff was entitled to recover. And having ascertained that amount, to allow interest thereon from the time the assessments were due and payable. “ On the $1600, there would be interest recoverable, deducting the payments that have been made. The note bears interest on the $1600, at the rate of five per cent, per annum, deducting the payments that have been already' made.” The attention of the jury was thus specially called to the interest on the note, one of the items embraced in the point which as a whole was refused, and rightly so. We have no means of knowing why the jury failed to find anything either for interest or principal. It must be presumed that they obeyed the instructions of the court, and it.may be that they found the payments referred to as already made, fully covered the interest. If the jury made a mistake or disobeyed instructions, the court had an opportunity of applying the appropriate remedy, when the case was before it on the motion for new trial. It may be that error intervened to the prejudice of the plaintiff, but if so, it has not been made sufficiently manifest to justify us in reversing the judgment. Judgment affirmed.