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the board was authorized by law to make the assessment is the principal question presented by the record.

This insurance company having been created by an act of the legislature, it is a clear proposition that its board of managers has such power, and such only, as was conferred by the act under which it was organized. The power of the board of managers to make and collect assessments on its members is derived from the charter, and from that alone. Section 8 of the charter provides: "Every member of this company who shall sustain any loss by fire shall give notice in writing, within fifteen days, to the president or secretary of said company, who shall appoint a committee of three from the board of managers, who shall assess the damages and report the same to the board of managers * * * within two weeks from the time of receiving notice of their appointment, and the board of managers shall, with all convenient expedition after receiving such report and ascertaining the sum which said party shall be lawfully entitled to, make provision and payment as herein specified." By going back to section 7 the manner in which the money can be collected from the members is pointed out. declares: "When the just demands of any insurer in said company, or member thereof, shall exceed the amount of its available funds on hand, such sums as shall be necessary to pay the same shall, without unnecessary delay, be assessed by the board of managers on insurances, each member to pay in proportion to the amount he has insured, and publish the same; and all and every of the members of the company shall pay into the hands of the treasurer his, her or their proportionable rates within thirty days after such publication." Under this provision, when a member sustains a loss the board of managers are first to determine what amount of money the company has on hand, and in the event that the loss exceeds the amount of available funds on hand a sum sufficient to pay the loss may then be assessed; but if

there should be a sum sufficient of available funds in the treasury to meet the loss, it would then be the duty of the board to devote such sum to the payment of the loss before resorting to an assessment. As respects the amount the board of managers should raise in case the available funds on hand are not sufficient to pay the loss, section 7 authorizes only such sum to be raised as shall be necessary to cover the loss, and we find no provision of the act which confers power to raise more money by assessment than should be required to pay the loss. Nor do we find any provision in the act which authorizes money to be raised for any purpose other than the payment of losses. Indeed, no word or expression in the charter is to be found which would indicate that the legislature ever intended to invest the insurance company with power to build up a surplus fund to pay future losses. The purpose of the act, as shown by its different provisions, was to authorize the organization of a mutual insurance company; a company with little or no capital or property of any description; a company clothed with power, when a loss occurred, to assess the various policyholders a sum which would, when collected, be sufficient to pay the member who had suffered loss by fire the amount of such loss. If the legislature had intended that this corporation should have power to create a large fund and keep it on hand by making assessment on members, surely some provision manifesting such intention would have been incorporated in the charter. But no provision of that character is to be found.

Rosenberger, Light & Co. v. Washington Fire Ins. Co. 87 Pa. 208, is somewhat similar to the case under consideration. There one section of the charter provided "that in case of loss by fire the managers shall have power to levy and assess the amount of said loss upon the persons insured in this corporation, pro rata, according to the amount or value of property insured by each, respectively." In the decision of the case the court, among other

things, said: "Nothing can be more certain than that the managers had no authority to make assessments in anticipation of losses. The words of the charter and by-laws need no interpretation. They are too explicit to admit of doubt, and the contract being consistent therewith is governed by them. Indeed, the latter contains no more than is necessarily implied in the former, for the expenses of the company must be borne by its members. They are, as members, subject to liabilities and entitled to privileges. A member may participate in its benefits, is presumed to know its rules and regulations, its books are evidence against him, and he shall bear his proportion of burdens. His corporate rights may be subject to the control of the corporation, but his rights as a party insured rest on the contract. Assurer and assured alike are bound by the charter, and neither can do what it does not authorize, nor can either change a by-law so as to modify the contract without the other's consent. Insurance Co. v. Conner, 5 Harr. 136." See, also, Mutual Fire Ins. Co. v. Gackenbach, 115 Pa. 496; New York Mutual Fire Ins. Co. v. Bowden, 57 Me. 286.

Other cases where similar statutes have been considered might be cited, but in the construction of a statute so much depends on the peculiar language of the act under consideration that reference to cases construing statutes somewhat different aids but little in arriving at a proper decision in a case of this character.

Assessments may be made for the purposes provided for in the charter and by-laws, but the managers of an incorporated company have no power to go beyond the powers conferred by the charter. Where a loss occurs the managers may exercise a reasonable discretion in determining the amount necessary to be raised. There will always be more or less expense in the collection of an assessment, and there may be insolvent members from whom collections cannot be made. These and other like matters are proper to be considered by the managers in

But where the man

fixing the amount of an assessment. agers go beyond all reasonable limits and make an assessment largely in excess of the amount required to pay the loss, as was done in this case, the assessment will be void and may be disregarded by the members.

As to the second point relied upon, that it had been the custom of the company to levy assessments to provide for the payment of future losses and that appellee was estopped from denying the validity of such assessments, but little need be said. It may be conceded, as suggested in the argument, that when the meaning of a statute is doubtful the usage of the parties working under the statute may be considered by the court in determining the meaning of the statute and the proper construction to be placed upon it. But we do not think that principle has any bearing on the question here involved. The evidence introduced on the trial tends to prove that the managers of the insurance company, for sev. eral years, in making assessments, did not adhere to the statute, and that in a number of cases more money was raised than was at the time required to meet losses. But these violations of the statute did not ripen into a right; nor are we aware of any principle which would preclude a policyholder of the insurance company from calling in question the validity of an assessment, although he may have previously paid assessments which did not conform to law. We do not think the doctrine of estoppel applies to such a case.

The judgment of the Appellate Court will be affirmed. Judgment affirmed.

Mr. JUSTICE CARTWRIGHT took no part.

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THE WEST CHICAGO STREET RAILROAD COMPANY

v.

JOHN DWYER.

Filed at Ottawa May 12, 1836-Rehearing denied October 13, 1896.

1. INSTRUCTIONS—a court need not give duplicate instructions. A requested instruction fully contained, in substance, in others given is properly refused.

2. FELLOW-SERVANTS-vice-principal-instruction as to apparent authority of offending servant. An instruction, in an action for injuries to a gripman upon a cable car, that it is immaterial whether the person exercising the authority to direct and command was known as a foreman or by any other title, if clothed with such apparent authority, is not objectionable, on the ground that the master is not liable for negligence of one having only a special or limited authority not arising from the performance of duty.

3. SAME-trial—whether a “starter” and a gripman are fellow-servants is a question of fact. It is a question of fact for the jury whether or not a "starter" ordering the moving of a cable street car was a fellow-servant with a gripman of such car, and acting as such, or stood in the relation of the representative of the common master, with authority to command such gripman.

West Chicago Street Railroad Co. v. Dwyer, 57 Ill. App. 440, affirmed.

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOHN GIBBONS, Judge, presiding.

The following is from the opinion of the Appellate Court rendered in this case:

"The appellee was a gripman in the employ of the appellant on the Madison street line of its cable road, in Chicago, and was injured while engaged in the performance of his duties as such gripman, on April 20, 1891. He had been in the service of the appellant since 1885 as a driver, until the cable system was put in operation, in 1890, and afterwards as a gripman. On the day of the injury, as he was operating his train, consisting of a grip car and one trailer, around the loop extending through

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