American Guaranty Fund Mutual Insurance v. Mattson

BLAND, P. J. 1. Prom what we can pick out of. the record, and from the briefs of counsel, we assume that the plaintiff is a mutual fire insurance company, organized under chapter 119, article 9, Revised- Stat [322] utes 1899, 2 vol., p. 1857, having its chief office in the city of St. Louis. The note was assessable at the time the board of directors made the assessment, and the nncontradicted evidence is that defendant was notified of the assessment in the manner and by the means provided for by the statute (sec. 7960). The section further provides that “if any person shall for thirty days after the mailing and publication of the notice fail to pay the assessment, the directors of the company may sue for and recover the whole of the note. ’ ’ The president of the company testified that a great many persons who were assessed by the board failed to pay the assessment and that the board ordered him to take those notes and employ Wad-dill & Hereford, a law firm, to sue for and collect the full amount of the notes and that he was proceeding under that instruction. Defendant contends that the plaintiff did not show that the condition of the affairs of the company created a necessity for making the assessment. Both the statute (see. 7960) and the note committed to the board of directors the duty of determining when the necessities of the company required an assessment to- be made, and, hence, the order making the assessment was at least.prima facie evidence of the necessity for making the order and the burden was on defendant to show affirmatively that it did not exist. 2. Defendant objected to the order making the assessment and the notice, on the ground that they were not full enough. The order and the notice stated the gross amount of premium notes held by the company subject to assessment, the amount of losses that had been adjusted, but not paid, and the amount of unpaid-expenses. We think this was sufficient, that it was not necessary to incorporate in the order and notice an inventory of the notes, or a schedule of the unpaid losses as contended for by the defendant. [323] 3. Because the guar autor s of the company (authorized by sec. 7958, R. S. 1899) had advanced the money and paid the losses, defendant contends there was no necessity for the assessment and that the company was not indebted. This effected a change in the form of the liability, but did not extinguish or lessen the liability. Authority is given under section 7960, supra, to levy an assessment to pay any liability of the company. The uncontradicted evidence in the case stows that every step necessary to be taken to mature defendant’s note was taken, and regularly and legally taken by the company. The defenses interposed are without the semblance of merit and the judgment is so manifestly for the right party that it should be affirmed regardless of any error that may have intervened at the trial. Hence, we refrain from a discussion of errors alleged to have intervened just before and during the argument of the cause by defendant’s counsel to the jury, and affirm the judgment. Reyburn, J., and Goode, J., concur.