Moore v. Schafer , 18 Pa. Super. 122 ( 1901 )

Opinion by

Orlady, J.,

The error complained of is the action of the court below in discharging a rule for judgment for want of a sufficient affidavit of defense. As shown by the statement the insurance company was incorporated on September 17, 1889, and on November 28, 1892, the defendant made an application for membership therein for the term of five years from November 29,1892, pursuant to which a policy of insurance was issued by the company and delivered to the defendant on December 3,1892. In consideration of the policy, the defendant gave’ to the insurance company a note under seal by which he promised to pay to the company “ such sum or sums of money, and at such time or times, as the board of directors of the said company may require and assess for losses and expenses.” The defendant surrendered his policy, which was canceled by the company on October 19,1897. Subsequent to issuing the policy to the defendant and prior to its cancelation, about 5,000 similar assessable fire insurance policies on the mutual plan were issued to various persons.

In 1897 the company became insolvent and a receiver was appointed by the court of common pleas of Dauphin county. In 1899, pursuant to a decree of said court, assessments were levied upon all persons who had held assessable policies for the purpose of paying losses and expenses. Attached to and made a part of the statement is a detailed schedule of losses and expenses from June 1, 1897 to October 19, 1897, which shows that all the losses stated were incurred prior to the cancelation of the defendant’s policy.

The defendant’s affidavit admits his having been a member of the plaintiff company and relies on the surrender of the policy and its acceptance by the company, “ all of which was several years prior to the time in which the plaintiff makes claim in the statement.” He fails to state the date when the policy was issued or surrendered for cancelation. The copy of application, and policy of insurance, the note with the date of assessments thereon, and their amount are not controverted, and these show the assessments claimed in this action to be for losses occurring during the life of the policy. The denial of liability is not sufficiently definite and precise to prevent judgment. The dates and amounts, which are not denied in the statement, must be taken as much “ within the knowledge of the defendant ” as of the plaintiff, and the allegation that the cancelation of the policy was “ several years prior to the time in which the plaintiff makes claim in the statement” is so indefinite as to be legally irrelevant. By the record it appears that the policy was not surrendered for cancelation until after the insolvency of the company was legally declared by the common pleas- of Dauphin county and a receiver had been appointed, and that during the life of the policy a large number of similar policies had been issued. The statement shows the defendant to have been a member of the company for nearly five years, yet the affidavit does not fix any time when he learned “ that false and fraudulent statements had been made to him in order to induce him to take a policy,” nor when he availed himself of the provision contained in said policy and notified the company to cancel it. A delay of one year has been held to be an unreasonable time to withhold such a defense: Susquehanna Mutual Fire Ins. Co. v. Oberholtzer, 172 Pa. 223. He owed a duty to his fellow members, some of whom sustained losses to which he must contribute his share toward paying: State Mutual Fire Ins. Co. v. Smith, 1 Pa. Superior Ct. 470; Kramer v. Boggs, 5 Pa. Superior Ct. 394; Stocldey v. Receiver, 12 Pa. Superior Ct. 169; Schofield v. Leach, 15 Pa. Superior Ct. 354.

The judgment is reversed, and record remitted to the court below with direction to enter judgment against the defendant for $492.98, with interest, unless other legal or equitable cause be shown to the court why such judgment should not be so entered.