Castner v. Farmers' Mut. Fire Ins. Co.
| Decision Date | 11 April 1883 |
| Citation | 50 Mich. 273,15 N.W. 452 |
| Parties | CASTNER v. FARMERS' MUTUAL FIRE INS. CO. |
| Court | Michigan Supreme Court |
An insurance company, when sued upon a policy, cannot, after the beginning of suit, make any objections to paying the loss that are different from or additional to those which it stated before.
Using a stove in a room that has no chimney does not release an insurance company from liability to pay a loss by fire resulting therefrom, if the premises are not within corporate limits or if the charter or by-laws of the company do not furnish a basis for refusing to pay.
The charter of a mutual insurance company made the non-payment of assessments within a fixed period a cause of forfeiture. In a case in which this period had been exceeded and the assessments not paid, an affidavit of loss admitted that the notice of assessment had been received shortly after it was sent; but the affidavit was filled out by the agent of the company, and the insured was not led to suppose that the company intended to rely on the provision for forfeiture, or that the date of receiving the notice was of any importance. Held, that in an action on the policy he was not estopped by the recital in his affidavit from showing that, although the notice was taken from the post-office soon after it was sent it had not been delivered to him until long afterwards.
The charter of a mutual insurance company provided that members should be notified of assessments by circular or verbally and that if they did not pay within a fixed time they would forfeit protection through their policy. Held, that such a personal liability could not attach from merely mailing the notice, if it was not actually received.
Refusal to submit special questions that cannot control the result is not error.
Error to Van Buren.
Lester A. Tabor, for plaintiffs.
E.A. Crane, C.A. Harrison, and George W. Lawton for defendant and appellant.
The plaintiffs recovered in the court below a certain loss which they had suffered by the burning of a dwelling-house and part of the contents, which had been insured by the defendant company. The policy was issued on March 2, 1878, and the fire occurred on the fifth of October following. A wood house stood about 10 feet from the dwelling, and an apartment in it contained a stove and was used for drying fruit. The fire started in that room. The application for insurance made no mention of this building. Notice was regularly given of the loss and the company acted upon it. The preliminary proof was drawn up by the secretary, and the directors made an investigation and acquired full knowledge concerning the facts. The situation of the wooden building in which the fire originated was ascertained. The board thereupon declined to pay any part of the loss, and the refusal was deliberately based upon two grounds: First, because the insured had forfeited all right to recover by not paying an assessment which the company had made against them, according to the provisions of section 16 of the charter; second, because a stove was used in a room without a chimney, in violation of the charter.
Such was the position when the suit was instituted, and the company were not at liberty thereafter to vary their ground and offer new or additional objections. The property was farm property, and not within any village limits. There is no provision in the charter against using a stove without a chimney, nor any by-law applicable to the objection.
The chief reliance is on the other ground. The important question is whether when the fire occurred the policy was still active so as to affect the company with liability as insurers in respect to the plaintiffs' loss, and the claim is made that it was not; that the force of the policy as an indemnifying contract had become suspended through the plaintiffs' failure to pay a valid assessment within 60 days after notice. The burden of showing...
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