Booher v. Farmers' Mut. Fire Ass'n Op West Va.

• Decision Date: 19 September 1922
• Docket Number: No. 4445.,4445.
• Citation: 91 W.Va. 468
• Court: West Virginia Supreme Court
• Parties: C. B. Booher v. Farmers' Mutual Fire Association op West Virginia.

91 W.Va. 468

C. B. Booher

v.Farmers' Mutual Fire Association op West Virginia.

No. 4445

Supreme Court of Appeals of West Virginia.

Submitted September 12, 1922.

Decided September 19, 1922.

1. Insurance Member of Fire Insurance Association Not in Default if Assessment Paid Wiithin Time Prescribed From Delivery of Notice or From Presumed Receipt in Due Course of Mail.

Where the policy and by-laws of a mutual fire insurance association provide that payment of assessments shall be made by the member within sixty days from the delivery of the notice to him, "which notice may be delivered personally or by mail addressed to each member at the last post office address given as shown by the association's books or records' and upon failure of such member to pay such assessment within sixty days after delivery of said notice, then his insurance shall become null and void; a member will not be in default of payment until sixty days from the time he receives the notice, or, iff mailed, from the time it would reach him by due course of mail. (p. 471.)

2. Same-Doubtful Clauses in Insurance Contracts Construed in Favor of Insured.

Where doubts arise as to the proper construction of clauses in insurance contracts, that view of them should be adopted which is most favorable! to the assured, and will prevent a forfeiture. (p. 471.) (Meredith, Judge, absent.)

Error to Circuit Court, Tyler County.

Action by C. B. Booher against the Farmers' Mutual Fire Association of West Virginia. From a judgment for defendant, plaintiff brings error.

Reversed and remanded.

Underwood & Moore, for plaintiff in error.

Foreman & Carter, and II. II. Rose, for defendant in error.

Lively, Judge:

This action at law is upon an insurance policy issued by a mutual fire insurance association to the plaintiff. The funds out of which fire losses were paid by the association were derived from assessments made upon its members at irregular intervals when fire losses occurred.

The association levied assessment No. 8, and notices thereof to its various members, including the plaintiff, were placed in envelopes addressed to the last post office address given, as shown by the books of the association, and deposited in the post office at Fairmont, West Virginia, on or about July 1, 1915. The plaintiff, whose building was insured for $1,100.00, resided at Booher in Tyler County. The policy required payment of such assessments within sixty days after the delivery of notice thereof, and neglect or refusal to pay the same within sixty days after the delivery of the notice rendered the policy null and void at the end of said sixty days.

Plaintiff's building, on which he had taken out the insurance, was destroyed by fire on September 2, 1915, and the association refused to pay the loss on the ground that the policy had become null and void and the insurance forfeited at the time of the fire, for failure of the assured to pay assessment No. 8, which was for $3.75, within sixty days after the time when the notice was deposited in the mail at Fairmont.

Upon the trial plaintiff attempted to prove that some time in the month of August, 1915, he had paid the amount of the assessment, the sum of $3.75. This contention was found against him by the jury, in answer to one of the interrogatories propounded and submitted before they retired to consider their verdict. It was the theory of the plaintiff that the sixty days in which he had to pay the assessment began to run from the day he actually received the notice through the mail, which he stated to be on the 6th day of July, 1915; whereas, it was the theory of the association that under the policy contract the sixty days began to run from the day on which the notice of assessment was mailed, and which it claimed to be July 1st. It seems that the jury had some trouble in arriving at its verdict; and when the jury was sent to its room for further consideration of its verdict one of the jurors propounded to the court the following question: "I believe the question, as I remember it, would you consider the delivery of the notice to the plaintiff when it was delivered to the post office at Fairmont or when it was delivered to his post office box at Booher?" The court replied: "In reply, the court instructs you that the law relating to it would date from the date of the mailing and the sixty days would be from that," to which ruling of the court the plaintiff objected and excepted.

The issue is sharply drawn. In conformity with the court's instruction, the jury returned a verdict for the defendant, and also found, in answer to interrogatory No. 2, that the association deposited the notice of assessment to the plaintiff at Fairmont not later than July 2d; and found, in answer to interrogatories Nos. 3 and 4, that the notice of assessment reached the post office and mail box of plaintiff on July 6th, and was received by him on that day. If the court's instruction, as above set out, is proper, then the verdict for the defendant cannot be disturbed.

The clause in the policy over the construction of which the ease turns is as follows: '' The Secretary shall notify each member of the association by written or printed notice signed by him, stating the amount due the Association from the member and the time and place to whom it shall be paid, such payment shall be made by the member within sixty days from the delivery of the notice, which notice may be delivered personally or by mail addressed to each member at the last post, office address given as shown by the Association's books or records.

"In event any member of the Association shall neglect or refuse to pay over to the secretary the full amount of said assessments and calls within said sixty days after the delivery of said notice, the secretary is hereby authorized to proceed to collect the same in the name of the Association, together with the resulting damages, including a reasonable attorney's fee, upon his premium obligation or otherwise and any member neglecting or refusing to pay such assessments calls within sixty days after the delivery of said notice so to do as aforesaid, then his insurance in the Association shall become null and void at the end of said sixty days, and shall so remain null, and void thereafter until the insured shall fully pay the Association all assessments and calls, interest and attorney's fees due the Association when, upon the payment of the same, his said insurance shall again become in full force and effect unless ordered cancelled by the board of directors.''

This case turns upon a proper construction of this clause of the policy with reference to giving notice of assessments and payment thereof within sixty days. Does a proper construction, of this clause mean that the sixty days in. which the assured is given for the payment of his assessment date (1) from the time the notice was placed in the post office at Fairmont; (2) when it actually reached the plaintiff on July 6th; (3) or when it should have reached him at his postofnce at Booher in. due course of mail? It will, be observed that the secretary is required to notify each member of the amount of the assessment and the time and place to

whom it should be paid, which notice may be delivered per sonally, or by mail addressed to each member at his proper post office address. It will be observed also that the clause does not say in specific terms that the delivery of the notice to the post office, the placing of the notice in the post office, shall be considered as service of the notice. It is susceptible of the construction that the delivery to the post office is the method by which the parties agreed that the notice should eventually be received by...