Marblehead Mutual Fire Insurance v. Underwood , 69 Mass. 210 ( 1855 )

Dewey, J.

We perceive no ground of exception to the ruling of the court upon the construction of that part of Rev. Sts. c. 37, § 31, requiring that “ if any member shall have a just claim on the corporation, founded on a policy issued by them, exceeding the amount of their then existing funds, exclusive of deposit notes given by the members, the directors shall forthwith assess such sum as may be necessary to pay the same, upon the members, in proportion to the amount of their premiums and deposits severally.” The term “ forthwith,” which is the subject of judicial inquiry here, must be reasonably construed. The leading object of the provision cited was to secure prompt action for the benefit of a member who had sustained a loss by fire to an amount exceeding the available funds of the company, independent of the deposit notes. It is rather directory, than an essential element in the validity of the assessment. Certainly the term is not to be construed strictly, as great practical inconvenience would result therefrom. If the assessment is properly made in every other respect, a delay in making it, for a time not unreasonable, will not vitiate it.

2. The second position taken by the defendant on the frial was that there were no sufficient data for making a correct assessment. This question, it was held, was for the jury, upon the whole evidence; and they were instructed that, if the assessment was made upon correct principles, and was substantially correct, although there might be some small errors, the defendant would be holden to pay the same. This, we think, was proper. This court has heretofore holden that, in making these assessments, due convenience, if not absolute necessity, requires some slight departures from that exactness which would result from making an assessment upon every loss, however insignificant in amount; and that an approximation to an assessment upon the several losses, as they occur, would be sufficient. Hence an assessment, made under a by-law or rule that, as often as some small percentage (named in the rule) upon the deposit notes would be required to meet past losses, though not made upon the first loss, was held a reasonable approximation to the requirements of the statute. New England Mutual Fire Ins. Co. v. Belknap, 9 Cush. 140.

3. The presiding judge properly ruled that it did not avoid the assessment, that the directors had taken a different proportion between the cash premiums and deposit notes of members of the company, as the terms of insurance, (changes in these proportions having been found, expedient in the progress of the institution,) unless it appeared that some damage resulted therefrom to the defendant.

4. The further rulings, as to the alleged cancelling of the policy, the effect, of such cancelling, and that the burden of proof was upon the defendant to establish the authority of Pulsifer to promise the surrender of the note, and that an agency to take and transmit policies would not of itself authorize him to make such promise to surrender the note binding on the company, were, in the opinion of this court, correct.

Exceptions overruled.