Donaldson v. Fortna

Citations

• 76 Pa. Super. 403
• 1921 Pa. Super. LEXIS 161

Syllabus

<p>Insurance — Insurance commissioner — Fire insurance company— Mutual company — Insolvency—Liquidation — Insurance commissioner as liquidator — Powers—Suit to recover assessments — Affidavit of defense. ■</p> <p>In an action by tbe insurance commissioner, acting as liquidator in closing the business of an insolvent fire insurance company, an affidavit of defense is insufficient which does not deny the insolvency of the company, or the right of the insurance commissioner to ascertain the proportionate share and levy assessments against stockholders, or that defendant received notice of the assessment, but confines the defense to the failure of the plaintiff to attach to his statement of claim, copies of the book entries showing the details of the alleged claim, including an itemized statement of the alleged losses, for which assessments against the defendant were levied.</p> <p>The insurance commissioner having been vested by law with the authority and power to levy the assessments, a legal presümption arises in favor of their correctness.</p> <p>The records of the insolvent company were, at least, quasi public records in the custody of the State, and any information they might contain of benefit to defendant in seeking to defend against the claim was, at all reasonable times, available to her or her counsel.</p> <p>It is the duty of a defendant who undertakes to file an affidavit of defense to the averments of the statement of which the defendant may have no personal knowledge to secure this knowledge, if by any reasonable effort he may acquire such information, which would enable him to admit the fact averred or clearly to deny it. Where the defendant had access to the records of the insurance department, she could have secured the necessary information to answer the allegations of the plaintiff, and, upon her failure so to do, judgment is properly entered against her, for want of a. sufficient affidavit of defense.</p> <p>Keller, J., dissents, in which Porter, J.