Dwinnell v. Kramer

• Decision Date: 14 November 1902
• Parties: DWINNELL et al. v. KRAMER et al.
• Court: Minnesota Supreme Court

87 Minn. 392

92 N.W. 227

DWINNELL et al.

v.KRAMER et al.

Supreme Court of Minnesota.

Nov. 14, 1902.

Appeal from municipal court of Minneapolis; Andrew Holt, Judge.

Action by W. S. Dwinnell and another, as receivers of the Minneapolis Fire & Marine Mutual Insurance Company against Charles C. Kramer and another. From an order overruling a demurrer to the answer, plaintiffs appeal. Affirmed.

Syllabus by the Court

1. The insurance policy which is the basis of this action was in form and substance the standard form, except that at the end thereof the words following were added: ‘This policy is issued in accordance with the provisions of sections 47, 48, 49, and 40, chapter 175, General Insurance Laws of the State of Minnesota. Reference is hereby made to said acts, and the same, together with the by-laws and the application of the assured on file with this company, are hereby declared to be a part of this contract.’ Held, construing certain provisions of Laws 1895, c. 175, relating to mutual fire insurance companies, that the defendants were not thereby made liable for assessments for the losses of the company. William S. Dwinnell and John C. Sweet, in pro. per.

W. W. Bardwell, for respondent.

START, C. J.

This is an appeal from an order of the municipal court of the city of Minneapolis overruling the plaintiffs' demurrer to the answer herein. The complaint alleged that the Minneapolis Fire & Marine Mutual Insurance Company, hereafter designated as the company, is a corporation organized under Laws 1895, c. 175, to do a mutal fire insurance business; that on April 3, 1900, the company, at the request of the defendants, and in consideration of $9.20, as premium, executed to them its policy of insurance, which is made a part of the complaint; that on March 5, 1901, the company was by the district court of the county of Hennepin, in sequestration proceedings pending therein, adjudged insolvent, and the plaintiffs were appointed receivers thereof, to wind up its affairs; that they accepted and qualified as such; and, further, that on March 15, 1901, the district court made an assessment upon the policy holders of the company to pay its losses, and that the amount so levied against the defendants was $9.20; and that they were duly notified of the amount thereof, but have never paid it. The complaint demands judgment for the amount of the assessment. The answer admitted that the policy was issued to them by the company, but alleged, in effect, that it falsely represented to them, for the purpose of inducing them to accept the policy, that it was not a mutual policy, but one upon the allcash plan, and that by accepting the same the defendants would not incur any contingent liability; that no notice was printed on the policy of the time and place of holding annual meetings of the company, as required by law, in case of mutual insurance policies; and that no notice of the application to the court to levy the assessment was served upon them. It may be conceded that, if the complaint states a cause of action, these allegations of the answer do not constitute a defense. But a demurrer reaches back to the first pleading which is defective in substance, and it is the contention of the defendants that the complaint does not allege facts constituting a cause of action. Their claim is that the policy, which is made a part of the complaint, as the basis of the alleged cause of action, show upon its face that the defendants were not insured on the mutual plan, and that the extent of their liability by the terms of the policy was the amount of the premium named therein, which has been paid. The policy is, in form and substance, the Minnesota standard policy, provided for by Laws 1895, c. 175, § 53, except that at the end thereof there are inserted these words: ‘This policy is issued in accordance with the provisions of sections 47, 48, 49, and 40, chapter 175, General Insurance Laws of the State of Minnesota. Reference is hereby made to said acts, and the same, together with the by-laws and the application of the assured on file with this company, are hereby declared to be a part of this contract.’ We assume that the reference is to Laws 1895, c. 175. Other than the words we have quoted, and the name of the company, there is not a word in the policy to indicate that it is a mutual insurance policy, but, on the contrary, all other provisions thereof are...