Cabell & McGuire v. Southern Mut. Ins.

Lacy, J., delivered the opinion of the court. The first question raised here is as to the jurisdiction of the court. The aggregate of the claims of the plaintiffs, the appellants here, exceeds the sum of $500. Each claim against the numerous defendants is less than that sum. The aggregate of all the claims is the, plaintiffs’ demand against all the defendants. This is the matter in controversy, and the right of the plaintiff to appeal when his bill is dismissed is clear. Winchester and Strasburg R. R. Co. v. Colfelt, 27 Gratt. 780; Gage v. Crockett, 27 Gratt. 736; Campbell v. Smith, 32 Gratt. 290; McCrowell v. Burson, 79 Va. 301, 302, and cases cited in the opinion of Bichardson, J. In this case the trustees represent the insured creditors, whose debts exceed the jurisdictional sum, and upon that ground. [613] also the j urisdiction is maintained. Atkinson v. McCormick, 76 Va. 798. The plaintiffs in the chancery court claimed the right to assess the policy holders on their deposit notes, after the expiration of their policies, provided the losses or expenses assessed for occurred before the expiration of the policies. The defendants, the policy holders, admit their liability fox-losses, etc., incurred before the expiration of their policies, but they deny the right of the company to assess them therefor after the expiration of their policies. They claim that their liability to charge and their liability to be assessed for such losses ends with the expiration of their policies. The plaintiffs admit that they cannot be charged for losses which occurred after the expiration of their policies, but maintain the right to assess them after the expiration of their policies for losses incurred before the policy expired. The plan was mutual, and the charter provided that the deposit notes should be paid at such time or times, and in such sum or sums, as the directors might require, to pay the expenses and losses of the company; and also gave power to the directors to fix the amount to be paid in cash at the time of effecting the insurance. The utmost extent of the- insured’s liability was his deposit note ; the degree to which that was to be enforced against him was his assessed, ratable share of such expenses and losses as should be incurred by the company -during the life of his policy. His liability thus ascertained was to be paid by him £<at such time or times, and in such sum or sums, as the directors might require,” for the stated purposes. If the insured admits that this charge is upon him, upon what can he contend that the right to assess his note ceases before the charge has been satisfied ? If he is liable for losses incurred during the life of his policy, upon what sound reason can be found a distinction between a loss occurring the last day of his period of liability and such as may occur [614] the first day % Yet if his contention is sound, he is bound for the latter, but has escaped the former altogether. Obviously, losses cannot be assessed for until they are known and proved, and the question here is not when they became known, but when they occurred. If they occurred during the time when he was bound, then the assessment cannot be avoided. There is no limitation to be found in the policy,, and there is none in reason, which will sustain the contention of the defendant below, the appellee here. After having bound himself to contribute, he cannot be discharged from the obligation he has assumed until the contribution has been actually made, or the obligation in some lawful way extinguished. Hawley v. Upton, 102 U. S. S. C. R.; Upton v. Tribetcock, 91 U. S. 45; Webster v. Upton, Id. 65; Smith v. Saratoga Co. Mutual Ins. Co., 3 Hill 512; Swanscott Machine Co. v. Partridge, 5 Foster 373; Jackson, Receiver, v. Roberts, 31 N. Y. 304; Sand, &c., v. Saunders, 28 N. Y. 416; People’s Fire Ins. Co. v. Hartshorne Co., 90 Penn. St. 470; Aikers v. Hita, 94 Penn. St. 398; Fayette Mut. Ins. Co. v. Fuller, 8 Allen 27; Atlantic Ins. Co. v. Goodall, 35 N. H. 336. The chancery court held that the right to assess ended with the life of the policy, although the losses occurred prior to the end of the policy, and dismissed the plaintiffs’ bill. This was plainly erroneous, and the said decree must be reversed, and the cause remanded to the said court for further proceedings to be had therein as prayed in the plaintiffs' amended bill. Decree reversed. Fauntleroy, J., dissents.