Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-01-08
REvERsES THE LOWER COURT
APPELLATE TRIBUNAL PASSES
ON LOCAL INSURANCE CASE.
Declares Assessment Companies Not
Subject to Provisions of Section
$50 of District Code.

The District Court of Appeals. in an
opinion by Mr.. Justice Robb. today de-
ciared that Congress did not intend to
SUBJECT assessment insurance companie
TO the provisions of section ESQ of the
District Code, which provides for the FL
ing of statement of net profits each year
and the payment to the collector of taxes
OF tax of IL per cent thereon.
This ruling reverses the decree of the
District Supreme Court which sustained
a demurrer by Superintendent of Insur-
ance Drake to bill for injunction filed
through Attorney IT. F. Davis by the
American Home Life Insurance Company
the Royal Life Insurance Company and
Provident Relief Association of this city
to prevent the taking of action against
them by the insurance department for
failure to comply with sections ca and
$50 of the code
After reviewing the contentious of coun-
sci and quoting sections 646. 647 go and
6o3 of the code. Justice Robb says:
1t is clear that the provisions of Sec
ton 64I apply to companies organized
without the District and doing business
within the District. and the provisions of
section go embrace District companies,
the provisions of section $50 embrace as
sessment companies. The question next
to be considered is whether the provisions
or section go relating to taxation, apply
to assessment companies Mutual fire in
surance companies are expressly eX-
cmpted from the provisions of this sec
ton and all other companies are required
to pay ~ per cent of the net amount
of their premium receipts.
Are assessments levied and collected
for the sole purpose of paying benefits and
defraying actual expenses of the associa-
ton to be deemed net premium receipts
within the meaning of this section? We
think not. These assessment associations
or companies are not conducted for gain
as are stock and mutual companies. In a
stock company the capital is liable for
the contracts of the company. and IL
the enterprise be. a profitable one divi-
dendS are declared. In mutual COM
panies the members are both the insurers
and the insured. but the premiums ex-
acted constitute the fund from which eX-
paid. and the residue. if any, represent
the profits.
Application of Section.
1t is to such companies. declares the
court, that section $50 refers. and not to
assessment companies organized solely
for mutual protection. When a member
joins an assessment company, the court
says, he oblgates himself to contribute
toward the protection of. every other
member, the consideration being every
other members promise to contribute
toward his protection. 1.-The arrangement
and classification Of these various COM
panies in the code" concludes Justice
Robb. land the language used concern
ing each convinces US that Congress dlo
not intend TO subject assessment COM
panies to the provisions of section 65O."
The Appellate Court today adopted as
it's opinion the conclusion reached by the
late Justice McComas in the appeal prose-
cuted by John a. Brill & j. G. Brill
Company against the Washington Rail
way and Electric Company for alleged in
fringement on the patent right for I'M
provements in car trucks. Justice Nc
Comas died before. his opinion could be
delivered. The court affirmed the decree
of the District Supreme Court. dismissing
the bill for an accounting filed by the
appellant in the lower court
The Court of Appeals Is convinced that
1t was proper for the court below to apply
the doctrine of comfy to this case. as the
matter had been adiudicated in the New
York courts.
o'Dwyer Against District.
The Court of Appeals. in an opinion
by Justice Robb. also reversed the judg-
ment rendered in the Supreme Court OF
the District in the case of Jane O'Dwyer
against the District of Columbia and the
Northern Market Company, and remanded
the case for a new trial The plaintiff
sued the market company and the Dis
trct for damages, she having broken her
arm by falling on refuse on the sidewalk
on 9TH street between o and streets.
The market company. the evidence show
ed, for some years had been permitting
hucksters to occupy the sidewalk in front
of the property of the company facing the
sidewalk on market days. provided they
paid the market company therefor, and
the District had permitted this to go on
for some years, and also had, on com.
plant Of the market company. stopped
other hucksters from standing in front OF
stores owned 10y other persons adjoining
the market company's property and who
would not pay a daily charge to the mar
ket company for the privilege.
Counsel for Mrs. O'Dwyer obtained an
instruction from the court that the occu-
patton of the public street was nuisance
and that If the plaintiff slipped on any
refuse on the sidewalk. caused by this
market use of the street. both the market
company and the District were liable in
damages The court on request of the
defendants. however. instructed the jury
also that the plaintiff could recover only
for negligence on the part of the de-
PENDANTS.
The Court of Appeals holds that the
point made by Messrs. Charles III. Merrill
and Charles F. Carusi, counsel for the
plaintiff that these two prayers could not
stand together was we'll taken.
ADDITIONAL POLICE LEAVE.