Capital City Mutual Fire Insurance ex rel. Kramer v. Boggs , 172 Pa. 91 ( 1895 )

Opinion by

Mr. Justice Mitchell,

The statement does not entitle plaintiff to a judgment, because it fails to show a complete right to recover the sum claimed. It sets out the order of the court of common pleas of Dauphin county, authorizing the receiver to levy an assessment “equal in amount to all other assessments heretofore levied.” This of course means all assessments theretofore legally and properly made. The statement then enumerates three prior assessments, two of them made by the board of directors in accordance with the by-laws, the third by the receiver, and then a fourth by the receiver under the order of court referred to. No authority in the receiver to make- the third assessment is shown, unless it is to be inferred from the general language of the act of May 1, 1876, sec. 49, P. L. 66, the adequacy of which is doubtful. But even conceding the receiver's power as to the third assessment, the fourth is excessive. It is for seventy-five dollars, being equal in amount to the second assessment of thirty dollars, the third of thirty dollars, and fifteen dollars penalty for failure to pay said assess-merits within thirty days after notice. For this last item there is no warrant in the order'of court, which authorizes only an amount equal to the prior assessments, and does not include penalties or other debts which may be owing by individual policy holders. While the order of the court is sufficient authority for what it covers, it must be strictly followed, and the receiver cannot go beyond its terms. On the face of the statement the fourth assessment should not have exceeded sixty dollars.

Turning now to the affidavit of defense, the objections set up to the incorporation and entry into business of the company, its failure to comply with the requirements of the insurance department, and the purposes and necessity of the last or fourth assessment, are not maintainable as to that assessment. The common pleas of Dauphin county, on the relation of the attorney general, had taken charge of the affairs of this company, appointed a receiver, and authorized him to make a specified assessment. That order was within the jurisdiction of that court and was conclusive of all prior matters involved in it. It cannot be questioned in any collateral or ancillary proceeding such as the present. As to the second and third assessments the rights of the receiver are no greater than those of the company, and the defendant may make all defenses that he might have made if the action had been brought by the latter to its own use, but as to the fourth assessment the necessity and amount are concluded.

But even as to the last assessment the rest of the affidavit sets up a valid defense. The order of the Dauphin county court is conclusive upon the validity and the amount of the assessment, but it does not touch the liability of the defendant to pay. It could not do so, as he has not been heard and therefore cannot be concluded as to defenses which are personal to himself. The affidavit avers that-defendant was never a member of the company because his application for and acceptance of a policy were induced by fraud on the part of the company’s agent, and (to meet the rule in Dettra v. Kestner, 147 Pa. 566, and Howard v. Turner, 155 Pa. 349) that no equities in other parties have intervened which require him to be held; and further that the losses for the payment of which these assessments were levied occurred before defendant’s policy was taken out, In the absence of any special agreement or clause of the by-laws such as existed in Ins. Co. v. Stauffer, 125 Pa. 416, defendant would not be liable for such losses. These defenses are upon individual grounds which were not concluded by the order of the Dauphin county court, and on which therefore defendant is entitled to a hearing: Akers v. Hite, 94 Pa. 394; Sunbury Ins Co. v. Humble, 100 Pa. 495; Hoffman v. Whelan, 160 Pa. 94.

Order affirmed.