
    Charles W. Sparks, Appellant, v. J. Crawford McCreery and Others, Respondents.
    
      Assessment by a mutual insurance company—when it is not sufficient to create a liability on thepart of a policyholder—minutes of the director's as evidence.
    
    Where a policy of insurance issued by a mutual insurance < ompany provides that the assured, in addition to the stated annual premium, would pay the company “ such further sums and at such times as the Board of Directors shall assess and order pursuant to the charter, the By-Laws and Laws of this State (Penn.), providing such assessment, shall not exceed three times the amount of annual Premium paid,” an extract from the minutes of a meeting of the board of directors stating that “ on motion, duty seconded, the Secretary was directed to send out notices calling for an assessment of three annual premiums,” which does not show what policies the assessment related to or during what year the losses, for the payment of which the assessment was intended, occurred, is insufficient to establish a liability upon 'the part of the policyholder for the assessment. The extract from the minutés is not of itself evidence that the assessment was made ‘‘pursuant to the charter; the By-Laws and Laws of this State (Penn.),” , .
    Appeal by the plaintiff, Charles W. Sparks, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Richmond on the 8th day of March, 1900, upon the dismissal of the complaint by direction of the court ■ after a trial at the Richmond Trial Term.
    
      Eamid Murray, for the appellant.
    
      Eugene G. Kremer, for the respondents.
   Goodrich, P. J.;

The plaintiff, assignee of the. Fidelity Mutual Fire Insurance Company of Philadelphia, Pennsylvania, sues to recover assessments upon the defendants as holders of two of the company’s policies dated -one September 1, 1894, for one .year, the ;premium being one hundred and five dollars, and the. other, December 31, 1894, for one year, the premium being ninety-live dollars. The policies, were executed in Philadelphia. The second contained a provision that the assured, in addition to the stated premium of ninety-five dollars, would pay the company “ such further sums and at such times as the Board of Directors shall assess, and order pursuant to the . charter, the By-Laws and Laws of this State (Penn.), providing such assessment shall not exceed three times the amount of annual Premium paid.” There is no similar provision in the first policy, but attached to it are the by-laws of the company. The record does not show that any were attached to the second policy, though each policy contained a provision that special regulations (of the company) lawfully applicable to its organization, membership, policies or contracts of insurance * * * shall apply to and form a part of this policy as the same may be written or printed upon, attached or appended hereto.” One of the by-laws attached to the first policy was as follows:

“ Article XIII. Within thirty days from date of notice each Policyholder shall pay into the treasury of this Company such assessment' as the Directors may deem proper, but in no case shall a Policyholder be liable for assessments aggregating more than one annual premium; failing to comply with this notice, the Policyholder forfeits all benefits their policy may afford and shall pay ten per cent additional for cost of collection.”

There is no specific proof of any change of by-laws increasing the limitation of assessment from one to three times the amount of the premium.

It is claimed that on July 16, 1897, the board of directors levied an assessment equal in amount to three annual premiums. The only evidence on this subject is an extract from the minutes of the meeting then held, which reads as follows: The Secretary then submitted a list of certain losses and suggested the imperative necessity of levying an assessment sufficient to put the Company in funds to meet and pay them. After a general discussion, lasting some time, and having learned "that the annual premiums on policies in force during the time the losses occurred, amounted to $12,487.96, on motion, duly seconded, the Secretary was directed to send out notices calling for an assessment of three annual premiums, amounting. to $37,463.89. On the figures submitted by the" Secretary it was not. believed that more than $20,000 would be realized from the assessment, and it would probably require all of this and more to liquidate the losses in process of adjustment and settlement and those in suit. The losses for which the assessment is levied amounts to $30,790.95, and legal and adjusting expenses $1,703.90, or a total of $32,494.85. The Secretary was instructed to file the schedules of assessment as prepared by' him, together with all other, papers regarding the assessment presented at the meeting.”

This minute does not show what policies this assessment related to, or during what years the losses occurred, for the payment of which the assessment was intended. Hence, there is nothing to show that the assessment, if any'was voted or actually levied, was made for losses within the life of the defendants’ policies, or occurring on policies of the same class as the defendants’ policies or upon which the defendants were liable. Nor is there -any other connection of liability of the holders of the policies in question with the assessment. In other words, there was an absolute failure of proof to connect the defendants with the assessment in question or to establish any liability therefor.

Moreover, the minute is not of itself evidence of the statements therein contained, which aré essential to the plaintiff’s right of recovery, viz., that the- assessment was made “ pursuant to the charter, the By-Laws and Laws of this State (Penn.).” It cannot be successfully contended that the directors had power arbitrarily to lay an assessment. Their power to do that depended upon the language of the charter and by-laws, and they are not in evidence so as to enable us to decide the conditions under which an assessment could be levied or whether or not an assessment was made in pursuance of the charter and by-laws.

Nor is there evidence of any change in the by-laws sufficient to support the raising of the limit of assessment from one to three years’ premiums. The only evidence which in any way relates to this subject is the testimony of the plaintiff, the secretary of the company, who merely said : “ The by-laws were all changed very shortly after the company started, at the annual meeting of the-members.” What the change was, or whether it related to the raising of the limit, or to some other subject, does not appear.

Under these circumstances, -the dismissal of the complaint was correct. There was an absolute failure to prove its allegations.

The judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.  