West Branch Insurance v. Macklin

The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

This was an action commenced originally before a justice of the peace to recover the amount of two assessments made on the defendants, who were members of the company plaintiffs, on their premium-notes. These notes promised to pay the sums mentioned “ in such portions and at such times as the directors of said company may agreeably to their act of incorporation require.” By the act of incorporation passed April 12th 1855, Pamph. L. of 1856, p. 648, it is provided that the premium-notes “ shall be paid at such time or times, and in such sum or sums, as the corporation shall from time to time require.” By the ninth section it is declared “ that every member of said company shall be bound to pay for losses and such necessary expenses as aforesaid accruing in and to said company, in proportion to the amount of his deposit-note; and suits at law may be maintained by said corporation against any of its members for the collection of said deposit-notes or any assessment thereon,” and by the tenth section “ whenever an assessment is made on any premium-note give?! to this company in consideration for any policy of insurance issued byj said company, and an action is brought for the recovery of such assessments, the certificate of the secretary, specifying the assessment and the amount due on such note by means thereof, shall be taken and received as prima, facie evidence thereof in all courts of this Commonwealth.”’

By the certificates of the secretary of the company, which were given in evidence by the plaintiffs, it appeared that the assessments now sued for were made respectively on September 29th 1865 and December 14th 1865.

The defendants offered in evidence a statement of the assets and liabilities of the company, dated April 1st 1863, made out and sent to their members as it would seem on the occasion of some former assessment. This statement was not offered to be followed, nor was it followed, by any other evidence going to show the condition of the company at the time the assessments in suit were made. It had no tendency by itself to rebut the prima facies of the assessments. Not only was there no such evidence, but the assignment before produced by the defendants, dated February 8th 1864, recites that “ The West Branch Insurance Company, owing to sundry losses and misfortunes, is unable to discharge her just debts.” We think, therefore, that the learned judge below fell into an error in admitting the statement of April 1st 1863, and in charging the jury as complained of in the second assignment — “ The defendant in this case alleges that the company had sufficient assets to pay all its legal and just liabilities without calling for the amounts now in suit, and that these additional ones are laid for the personal profit of the parties managing this., corporation. If this be true, it would be an available defence to this action.” We think there was no evidence in the cause to rebute the prima facies of the secretary’s certificate, and the jury should have been instructed to find a verdict for the plaintiff, for the amount of the assessments sued for.

Judgment reversed, and venire facias de novo awarded.