Landis v. Home Mut. Fire & Marine Ins. Co.

• Decision Date: 31 March 1874
• Court: Missouri Supreme Court
• Parties: ISRAEL LANDIS, Respondent, v. HOME MUTUAL FIRE & MARINE INSURANCE COMPANY, of St. Louis, Appellant.

56 Mo. 591

ISRAEL LANDIS, Respondent,

v.HOME MUTUAL FIRE & MARINE INSURANCE COMPANY, of St. Louis, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

D. T. Jewett, for Appellant.

I. The resolution of the directors and the notice in this case are in exact compliance with the “conditions of insurance.” The conditions say the directors may terminate the policy after notice given of intention to do so. The notice recites the resolution and says that from and after the receipt of that notice, the policy is canceled. No length of time is required after notice and before cancellation. (27 Upper Canada, 213, 217 and 453.)

II. The action was not brought within the time required by the 10th section of the charter. It has been settled in this State, as well as in many others, that such a limitation, as to the time of bringing actions, is binding on the assured. (Keim vs. Home M. F. & M. Ins. Co., 42 Mo., 38.) In this case, the company refused to pay any thing. The assured was “not satisfied with the determination of the directors,” and should have sued within the time specified in the charter, after that determination was made known to him.

James Taussig, for Respondent.

I. Granting, for the sake of argument, the right of the company to cancel a policy, that right was not exercised in the manner pointed out in the clause invoked by the appellant.

( a.) The resolution of the board given in evidence, directed the secretary to give notice of the intention of the company to cancel the policy, instead of which, the secretary gave notice that the policy was canceled, on receipt by the insured of the notice. The notice was not in pursuance of the resolution.

( b.) The company was bound to give to the insured reasonable notice of a time to be fixed in the future for the cancellation of the policy, so that the holder could protect himself by effecting insurance elsewhere. No such opportunity was given. And an attempt to terminate the policy at the instant of giving notice was properly disregarded.

( c.) The courts construe such conditions strictissimi juris.(Van Valkenburg vs. Lexington Ins. Co. [N. Y. Court of App., Jan'y, 1873,] Insurance Law Journal, Vol. 2, No. 3 p. 205, March Number, 1873; Lyman vs. State Mut. F. Ins. Co., 14 Allen, 329; see also Emmott vs. Slater, &c. Ins. Co. 7 R. I. 562.)

II. Defendant failed to prove that plaintiff's action was not brought in time.

( a.) The 10th section of the charter clearly applies only to cases in which the company admits its liability, but fails to agree with the insured as to the amount of the loss. No “determination” of the amount of loss can be had in a case where the company denies the existence of the contract of insurance. (See Boynton vs. Middlesex M. Fire Ins. Co., 4 Metc. [Mass.,] 212, Williams vs. N. Eng. M. F. Ins. Co., Williams vs. Columbia M. F. Ins. Co., Robinson vs. Same, 29 Maine, 465.)

( b.) That the company itself gave the construction above stated, and illustrated by the case of Boynton vs. Middlesex Ins. Co., (4 Metc. 212,) is very clearly shown by the act of the company in having the charter of 1845--the original charter of the company--amended by the act of 1857. (Sess. Acts 1845, p. 197, § 10, and Sess. Acts of 1857, p. 555, § 11.)

( c.) The case of Keim vs. Home M. Ins. Co., (42 Mo. 38,) is clearly not in point, for it turned upon the construction of § 11 of the Act of 1857, which differs materially from the 10th section of the charter of 1845.Polk & Causey, for Respondent.

I. Under section 10 of the Act of 1845, the party insured is required to bring suit at the next term of the court, only when the amount of the loss or damage has been ascertained and determined by the directors of the company, and the insured is not satisfied with that determination. That section has no reference to the case of a refusal to pay any thing at all.

In the case of Keim, et al., vs. The Home M. Ins. Co., 42 Mo., 38, relied on as an authority, the act incorporated into the policy, is that of the 2d March, 1857. (See Acts of 1856-7, p. 558.)

ADAMS, Judge, delivered the opinion of the court.

This was an action on a policy of insurance, issued by the defendant to plaintiff on the third day of April, 1857, insuring him in the sum of fifteen hundred dollars on a building in the city of St. Joseph, in this State, for the term of six years. By the terms of the policy the plaintiff became a member of the company during the continuance of his policy. The policy was in the usual form issued by companies on the mutual plan; and the charter of the company enacted by the Legislature of Missouri in 1845, with amendments thereto, up to and including the amendment of the 13th of February, 1849, was printed on and formed a part of the policy; and also the by-laws and conditions of insurance were printed on the policy as a part of it.

The plaintiff's property was wholly consumed by fire on the 18th day of October, 1861, and the loss was greater than the amount insured. The plaintiff proposed to comply with the stipulations of the policy in regard to notice and proof of loss, but the company waived the notice and proofs, and declined to pay anything, upon the alleged ground that the policy had been canceled.

The only points raised and discussed here and relied on for reversal are, that the policy had been duly canceled by the company before the loss occurred, and that this suit was not commenced within the time prescribed by section ten of the charter which had been made a part of the policy.

1. In regard to the first point. By one of the conditions of insurance, which formed a part of the policy, the company reserved the right, by complying with said condition, to cancel the policy. The question here is, whether this condition was complied with, and whether this policy was duly canceled by the action which was had by the company in the premises.

The condition referred to reads in these words: “If, during the insurance, the risk is increased by the erection of buildings or by the use and occupation of neighboring premises, or otherwise, or if, for any other cause, the directors shall elect, it shall be optional with them to terminate this policy after notice given to the assured or representatives of their intention to do so. But in every case of termination of insurance the assured shall be bound to pay his or her proportion of assessments up to the day of actual cancellation of the policy on the books of said company.”

On the 21st day of September, 1861, at a special meeting of the Board of Directors of this company, held at their office in St. Louis, Missouri, the following preamble and resolutions were unanimously adopted:

“Whereas, the rate of insurance fixed upon policies by this company was determined by the usual hazard occasioned by accidental fires, and not intended to cover losses occurring by incendiaries in time of civil commotion like the present; therefore be it resolved, that the secretary of the company is hereby instructed to notify all members holding policies outside of the county of St. Louis, that, owing to the great number of fires by means of incendiaries, this company, for the time being, and until after the settlement of the present difficulties of the country will discontinue risks under all policies issued on property outside of the county of St. Louis, in Missouri.”

Under this preamble and resolution, the secretary, some time before the loss occurred, served on the plaintiff the following notice:

OFFICE HOME MUTUALF. & M. INS. CO.,

)

ST. LOUIS, Sept. 21st, 1861.

)

“TO MR. ISRAEL LANDIS:

At a meeting of the Board of Directors of the Home Mutual Fire and Marine Insurance Company held this day, the following preamble and resolution were adopted (then follow the preamble and resolution above copied). In accordance with the foregoing resolution, you are hereby notified that from and after the receipt of this notice or publication of the same, your...