Schofield v. Leach

Opinion by Orlady, J., This action is brought by a receiver of a mutual insurance company to recover certain assessments which had been levied by the receiver under authority of the court of common pleas of Dauphin county. The defendant filed an affidavit of defense which, on a hearing in the court below, was adjudged insufficient, and a rule for judgment was made absolute. Unfor [357] tunately for the defendant every phase of his defense has been passed upon by the Supreme or Superior Court, and each contention has been resolved against him. The regularity of the appointment of the receiver was not questioned and the assessments made on the policies issued to the defendant were in strict accord with the decree of the Dauphin county court. The company was a mutual one, and, for the reasons set out at length by Judge Willard in Ins. Co. v. Boggs, 5 Pa. Superior Ct. 394, the policies were liable to the assessments, and such assessments'were conclusive as to their validity and amount. See also Stockley v. Riebenack, 12 Pa. Superior Ct. 169, Stockley v. Hartley Bros., 12 Pa. Superior Ct. 628, and Ins. Co. v. Boggs, 172 Pa. 91. The defendant was- liable for these assessments which were made to pay losses accruing during the life of the policies issued to him, even if they had been surrendered: Matten v. Lichtenwalner, 6 Pa. Superior Ct. 575; Stockley v. Riebenack, supra; Susquehanna Ins. Co. v. Mardorf, 152 Pa. 22. The policies were issued to the defendant in May and June, 1893, and were held by him until February 13, 1895, during which time he paid several assessments thereon. In his affidavit of defense he alleges that “ in consequence of information received, and believing the corporation to be a swindle and a fraud, he took all the policies which he had, being six in number, to the office of the company in Philadelphia and made a formal surrender of the same.” The statement declares “ that after the issuing of the aforesaid policies to said defendant, the said company subsequently issued over fifty-five hundred policies to various persons, upon some of which policies losses subsequently occurred, as appears by the said decree hereto attached.” By his delay of nearly two years and the payment of the assessments on the policies while he held them, he allowed the rights of other parties to intervene. He owed a duty to his fellow members, and especially to those who may have been induced through his membership in the company to unite their risks with his, some of whom sustained losses to which he must contribute his share towards paying: Ins. Co. v. Smith, 1 Pa. Superior Ct. 470. A delay of one year has been held to be an unreasonable time to withhold such a defense: Fire Ins. Co. v. Oberholtzer, 172 Pa. 223. The judgment is affirmed.