Johnson v. Retail Merchants Mutual Fire Ins., Co.
| Decision Date | 18 November 1910 |
| Docket Number | 16,822 - (212) |
| Citation | 128 N.W. 462,112 Minn. 418 |
| Parties | JOHN JOHNSON v. RETAIL MERCHANTS MUTUAL FIRE INSURANCE COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Clay county to recover $3,000 upon a fire insurance policy. The facts are stated in the opinion. The case was tried before Baxter, J., who made findings of fact and found that defendant was entitled to judgment. From the judgment entered pursuant to the order for judgment plaintiff appealed. Affirmed.
Insurance -- waiver of by-law by mutual company.
Mutual fire insurance companies have the power to waive a by-law which provides that failure of a member to pay the premium within sixty days from the date of the policy shall void the same without further notice or act on behalf of the company.
Insurance -- evidence.
The indorsement on the policy by the company of a gasolene permit and the sending out of a statement of the premium due together with a letter demanding immediate settlement, did not necessarily constitute a waiver of the default occasioned by the nonpayment of the premium.
Insurance -- waiver of default in payment.
The findings of fact justify the conclusion that there was not a waiver of the default.
Nye & Dosland, for appellant.
Freeman P. Lane, for respondent.
Action upon fire insurance policy of $3,000 upon appellant's stock of goods. Defense, that appellant failed to pay the premium when due, and that the policy was void at the time of the fire. The reply alleged that appellant had paid $10.12 to apply upon the premium, leaving a balance of $57.38, which appellant had at all times been ready and willing to pay, and that respondent had waived its right to claim that the policy was void for nonpayment of the premium.
The undisputed facts are: That the policy was duly issued and delivered to appellant on March 31, 1909, at which time the premium became due. On June 25 respondent duly issued and delivered to appellant a permit for the use of gasolene. "That on or about the first day of August, 1909, the said defendant company duly caused to be made and mailed to said plaintiff, at his place of residence at Averill, Minnesota, a statement in words and figures, to wit:
Policy No.
28405
$67.50
Mar. 31
Bal. due
26040
10.12 -- $57.38
which said statement was duly received by plaintiff in due course of mail. * * *" That accompanying said statement was a letter written by the secretary of said defendant company, which letter is in words and figures, to wit:
The property was destroyed by fire on August 10, 1909. No payment of premium was made by appellant prior to the fire, and no tender thereof was ever made until August 20, 1909, when the balance was offered and refused. Proofs of loss were duly made and served on appellant before the commencement of this action. The court below held that the $10.12 paid March 31 was not a payment on account of the policy premium, but was a credit given to appellant in lieu of a dividend earned on the premium of a policy previously issued, which expired on the thirty-first day of March, 1909, and that the policy was void for nonpayment of the premium.
Section 1629, R.L. 1905, reads:
Section 2 of article 5 of the by-laws reads:
The amount which the insured should have paid March 31, at the time the policy was delivered to him, was $57.38. This he had not paid at the expiration of sixty days from that date, and hence, under the statute and by-laws of the company, the policy lapsed and became void on May 31, 1909, without any other act or notice on the part of the company. Did the subsequent conduct of the company in attaching a gasolene permit on the twenty-sixth day of June following, and in submitting a statement and demanding settlement on August 2, constitute a waiver and have the effect of reinstating the policy?
The exact question here presented has not, to our knowledge, been before this court, but certain general propositions concerning the waiver of similar contract provisions have become pretty well settled. Generally speaking, where an insurance company or fraternal association varies the terms of the contract by accepting premiums or assessments after they become due, it thereby waives the...
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