Appeal, No. 221, Oct. T., 1958, from judgment of Municipal Court of Philadelphia, Dec. T., 1956, No. 854, in case of Francis R. Smith, Insurance Commissioner of the Commonwealth of Pennsylvania, and as such, statutory liquidator of Seaboard Mutual Casualty Company (dissolved) v. Fay Constantine. Judgment affirmed.
J. Webster Jones, for appellant.
Morton S. Powlen, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 518]
This is an appeal from the judgment of the Municipal Court of Philadelphia, dismissing the appellant's motion for judgment n.o.v. and directing judgment to be entered on the directed verdict.
The case arose upon a complaint in assumpsit by the Insurance Commissioner of Pennsylvania, the appellee, in his capacity as the liquidator of Seaboard Mutual Casualty Company, a domestic mutual insurance company, against Fay Constantine, the appellant, for an assessment, alleged to be due by her, as a member and policyholder.
The issue raised by this appeal is that, the failure of the company to attach copies of its application, constitution, by-laws, and other rules referred to in the policy, as a part of the policy, precluded the levy and collection of an assessment levied against the policyholder. This, being contrary to the Act of May 17, 1921, P.L. 682, Art. III, Sec. 318, 40 PS § 441, which provides: "All insurance policies, issued by stock or mutual insurance companies or associations doing business in this State, in which the application of the insured, the constitution, by-laws, or other rules of the company form part of the policy or contract between the parties thereto, or have any bearing on said contract, shall contain, or have attached to said policies, correct copies of the application as signed by the applicant, or the constitution, by-laws, or other rules referred to; and, unless so attached and accompanying the policy, no such application, constitution, or by-laws, or other rules shall be received in evidence in any controversy between the parties to, or interested in, the policy, nor shall such application, constitution, by-laws, or other rules be considered a part of the policy or contract between such parties. 1921, May 17, P.L. 682, Art. III, § 318."
[ 187 Pa. Super. Page 519]
It should be noted that this act provides when the application, constitution, by-laws and rules are considered a part of the policy and when they may be introduced as evidence in the proof of a claim. It does not provide that the failure to attach the necessary articles made the policy void or released the parties from any liability based on other provisions included in the policy or fixed by statute.
The assessment in this case was made, after hearing, by a decree of the Dauphin County Court. See Com. ex rel. Robert E. Woodside v. Seaboard Mutual Casualty Company, 86 D. & C. 326. No appeal was taken from this order.
The plaintiff appellee relied for proof of his claim on the following provision of the policy. "The insured agrees to be bound by all the provisions of the By-laws of the company in force at the time this policy is issued, or that may become in force during the continuance of the policy, to which By-laws reference is had and which are taken to be incorporated herein; and shall be entitled to such dividends as may be declared by the Board of Directors; and agrees to pay in addition to the cash premium herein provided for, such sums as may be assessed by the Board of Directors not to exceed an amount equal to and in addition to the deposit premium herein contracted to be paid." (Emphasis ours) There was no necessity to rely upon ...