Dwinnell v. Felt
| Decision Date | 19 June 1903 |
| Docket Number | 13,403 - (114) |
| Citation | 95 N.W. 579,90 Minn. 9 |
| Parties | W. S. DWINNELL and Another v. FRED FELT |
| Court | Minnesota Supreme Court |
Action in the municipal court of Minneapolis by plaintiffs, as receivers of Minneapolis Fire & Marine Mutual Insurance Company, insolvent, to recover an assessment levied upon defendant in the insolvency proceedings by the district court for said county on account of a policy of insurance issued by said company to defendant. From an order Holt, J., overruling a demurrer to the answer, plaintiffs appealed. Reversed.
Fire Insurance Policy.
An insurance policy issued by appellant, a mutual insurance company, was according to the Minnesota standard form, except that it contained references to the articles of incorporation and by-laws, and a provision that the premium named in the policy should be payable in cash or notes, as agreed upon and that the insured, by the acceptance of the policy assumed an additional liability equal to the premium.
In an action to recover the additional premium, held:
Additional Premium.
The policy stated upon its face that it was a mutual company, and that the insured was subject to pay the additional premium, and the contract was not changed by the fact that it was represented to be a stock policy.
Estoppel.
Having kept the policy and received the benefit of the insurance, the insured was estopped from setting up as a defense fraudulent representations as to its character.
Notice of Assessment.
The insured was not entitled to notice of intention to make an assessment for such additional premium.
Annual Meeting.
The policy was not void because it did not contain a notice of the annual meetings, nor because the insured did not receive such notice.
The complaint stated a good cause of action. Dwinnell v. Kramer, 87 Minn. 392, distinguished.
William S. Dwinnell and John C. Sweet, for appellants.
Winfield W. Bardwell, for respondent.
The Minneapolis Fire & Marine Mutual Insurance Company was organized under the provisions of Laws 1895, c. 175, and, having become insolvent, appellants were appointed receivers on March 5, 1901, and this action was brought to recover an assessment made by the court under the authority of the policy issued to respondent. The answer set up as a defense that respondent had been induced to accept the policy upon the representation of the company that it was a joint stock, and not a mutual, insurance company, and that the policies of insurance were issued upon a cash plan, with no contingent liability in connection therewith. As a further defense, it was alleged that respondent had not been notified by the company or the district court of any intention to make such assessment, for which reason it was void; that there was no notice of the annual meetings printed on the back of the policy, and that respondent never in fact had any notice of any such meetings, and for that reason the policy was void. This answer was demurred to upon the ground that it did not state facts sufficient to constitute a cause of action, and the demurrer was overruled. The demurrer of course calls into question the validity of the complaint, and the cause was argued and submitted principally upon the ground, on behalf of respondent, that the complaint was insufficient.
The answer does not state a defense. So far as misrepresentations as to the nature of the policy are concerned, the policy spoke for itself, and contained the following provision:
"The premium named in this policy...
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