Snader v. Bomberger , 1902 Pa. Super. LEXIS 425 ( 1902 )

Opinion by

W. D. Porter, J.,

The court of common pleas of Lancaster county, on the relation of the attorney general, had taken charge of the affairs of the plaintiff company, appointed a receiver, and authorized him to make an assessment on all policies which were assessable during the period from June 1, 1898, to December 29,1894, at the rate of one twenty-fifth of one per centum for each day during said period that the policies, respectively, were in force. The receiver assessed the several policies which had been held by the defendant in accordance with the provisions of this order, for the actual number of days they had been in force. The order for the assessment being within the jurisdiction of the court was conclusive both as to the necessity for and the amount of the assessment and cannot be questioned in either respect in any collateral or ancillary proceeding such as the present. It must be accepted as settled that all policies which were in force during the period of time fixed by the order of the court are to be assessed in accordance with the terms of that order. The only defenses which were open to this appellant, in the present action, were those which were personal to himself: Stockley v. Riebenack, 12 Pa. Superior Ct. 169 ; Schofield v. Leach, 15 Pa. Superior Ct. 354; Stockley v. Schwerdfeger, 19 Pa. Superior Ct. 289 ; Capital City Mut. Fire Insurance Company v. Boggs, 172 Pa. 91; Wood v. Standard Mut. Live Stock Insurance Company, 154 Pa. 157. The various- offers by the defendant of evidence which tended to show that the assessment authorized by the court of common pleas was excessive, and included extravagant expenditures and debts not properly chargeable to the policies in force during the period designated, were properly rejected.

The offer of the defendant to prove that he had made a settlement of all claims of the company against him with Allan A. Herr, not being accompanied by an offer to show the authority of Herr to bind the company, was upon its face inadmissible. The reason for the absence of an offer to show Herr’s authority is made evident by the testimony of both Herr and the defendant, by which it is made clear that Herr had no authority whatever to bind the company.

The attempt of the defendant to set off against this assessment the amount which he had paid under a former assessment made by the officers of the company, could not have been sustained. That former assessment was one of the assets of the company, and if any member of the company has not paid it the receiver can recover it in addition to the assessment authorized by the court: Fire Insurance Company v. Boggs; supra.

The withdrawal by the defendant from the company did not release him from liability for losses incurred during the life of his policies. He must pay his just share up to that time, and in this case the amount of the assessments and the necessity for making them are conclusively fixed by the court of common pleas of Lancaster county, from which no appeal has been taken. The defendant did not deny that his policies had been in force during the period covered by the decree of the court of common pleas. He produced no evidence tending to establish any claim which was a legitimate subject of set-off. The whole defense was an attempt to attack the decree of the court of common pleas of Lancaster county collateralljn

When the plaintiff offered in evidence the several applications of the defendant for insurance the objection of the defendant was put upon the ground that these applications had been returned and canceled by the company. There was no suggestion then made by the defendant that copies of these applications had not been attached to the several policies, and there was nothing to indicate to the court that the objection was based upon the provisions of the Act of May 11, 1881, P. L. 20. Had the defendant intended to take advantage of the provisions of the act, he ought to have stated the grounds of his objection with sufficient precision to bring himself within the operation of the statute.

The judgment is affirmed.