Rosebraugh v. Tigard

• Decision Date: 11 January 1927
• Parties: ROSEBRAUGH v. TIGARD ET AL.
• Court: Oregon Supreme Court

252 P. 75

120 Or. 411

ROSEBRAUGH v. TIGARD ET AL.

Supreme Court of Oregon

January 11, 1927

Department 2.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by W. W. Rosebraugh against C. F. Tigard and others, doing business under the name of the Lower Columbia Fire Relief Association. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action on a policy or certificate of insurance, No. 104 in the sum of $2,500, on plaintiff's foundry and boiler works and office in Salem, Or. The certificate of insurance was issued by the Lower Columbia Fire Relief Association, a mutual insurance association, issuing policies only to the members of the patrons of husbandry, commonly called the grange, of which plaintiff is a member. His application was approved and a policy issued April 29, 1919, dating from 12 o'clock noon on April 24, 1919, and expiring 12 o'clock noon April 24, 1924. About 7:30 p. m. June 24 1922, the insured property was wholly destroyed by fire. The value of the property burned was greater than the amount of the insurance. The cause was tried by the court without the intervention of a jury. Findings of fact and conclusions of law were made, and a judgment entered thereon in favor of plaintiff, from which judgment the defendants appealed.

In plaintiff's application for insurance on his property which is dated April 23, 1913, there was a clause which reads as follows:

"In consideration of the advance payment, and the certificate to be obtained on the property named, I do hereby agree to pay all assessments made upon me by the directors of the Lower Columbia Fire Relief Association to meet all losses that may occur and the expense of maintaining the affairs of the association."

Section 1 of article XII of the constitution of the association is as follows:

"The board of directors shall have management of the affairs of the association, and be its authorized agents. They shall have power to accept or reject fire risks, to annul certificates, to adjust payments of losses and levy assessments to pay the same, to invest the funds of the association, and to transact all business for which the association is formed."

At the time of the issuance of certificate No. 104, until the 6th day of January, 1921, section 2 of article XII of the constitution, provided as follows:

"The board of directors may annul any certificate for any of the following causes:

"(7) Where an assessment is not paid within 60 days after due notice has been given to the holder of a certificate."

At the date of the certificate, section 34 of the by-laws of the association provided that:

"Any person who fails to pay his assessment within 60 days after being notified, his insurance shall be null and void until such assessment is paid."

Section 30 of the by-laws provides that:

"The constitution and by-laws may be changed, altered, or amended or additions made thereto, by the board of directors at any regular meeting."

Section 12 of the by-laws, until January 6, 1921, provided as follows:

"After the loss has been adjusted, the secretary shall make the assessments as provided in article 5 of these by-laws, and shall immediately notify each member of the amount of his assessment, which must be paid to the secretary within sixty days; and, if such assessment is not paid, after notice by mail, in sixty days, an action may be brought therefor against such defaulting member, and this authorizes and empowers the president and his successor in office to bring such action in his name for the other members; and it is hereby agreed that in such action such defaulting party will not plead a nonjoinder of parties, but permit judgment to be entered notwithstanding all parties are not joined in such action; and the failure, within the time specified to pay such assessment, shall forfeit all claim of the member or members defaulting therein, and render his or their certificates null and void, and they shall be prohibited from again becoming members of this association."

On January 6, 1921, section 12 of the by-laws of the association were changed so as to read as follows:

"All assessments must be paid within ten days after the date when due, if not so paid the policy shall be null and void until paid."

Section 34 of the by-laws was stricken out. Section 2 of article XII of the constitution was also changed, so as to authorize the board of directors to annul any certificate where an assessment is not paid within ten days, after due notice. Section 24 of the by-laws of the association provided as follows:

"The director of each district shall appoint for every grange in the district an agent, to serve the current year, who shall be a member of the grange, whose duty it shall be to receive applications for insurance within the jurisdiction of such grange to which he belongs, 'and whose compensation shall be fixed by the board of directors.' All applications or changes desired in certificates shall be countersigned by the director of the district, and by him forwarded to the secretary."

Section 25 of the by-laws thereof provided as follows:

"Agents shall be governed in the performance of their duties by the constitution and by-laws of the association, and by the instructions of the board of directors; and they shall be responsible to the director of the district for the careful and faithful performance of their duties, and may be removed by him at any time."

About March 19, 1922, the directors made an assessment upon the plaintiff to be paid April 24, 1922. The defendant's secretary thinks he sent the plaintiff a notice in writing of the amount about the 25th day of March, 1922, which stated in substance, if not paid within 10 days after it was due, his policy would be null and void until the assessment was paid, and that another notice was sent in April and another in May.

In June, 1922, before defendant knew of the fire, the secretary of the association notified the plaintiff in writing that his assessment was due on April 24, 1922, and called his attention to the by-laws.

After the fire, plaintiff made his proof of loss and demanded payment of his insurance. Plaintiff alleges, and the proof tended to show, that R. R. Ryan, defendant's agent, granted him an extension of time of 90 days, in which to pay the assessment that was due April 24, 1922; that this was the custom and practice of this agent, which was known to and ratified by the defendant association. The plaintiff avers that the defendant should be estopped from alleging that plaintiff was delinquent in payment of his assessments at the time of the fire.

W. S. U'Ren, of Portland, for appellants.

Walter C. Winslow, of Salem, and Roy F. Shields, of Portland (S. M. Endicott, of Salem, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

[1[ There can be no contention in regard to the law in this state that in an action at law tried by the court without a jury, the findings of facts made by the trial court, have the same force and effect as the verdict of a jury. Therefore, in regard to the facts found in this case, we have only to inquire if there is any substantial evidence to support such findings. We are not concerned with any conflict in the testimony.

The circuit court found, among other facts, in substance, as follows:

That on the 28th day of April, 1919, in consideration of plaintiff having become a member of said Lower Columbia Fire Relief Association, and having paid the sum of $27.50 to defendant J. J. McDonald, one of the directors of said association, and having bound himself to pay his ratable proportion of all assessments made for loss or damage by fire or lightning in accordance with the constitution and by-laws of said association, during continuance of said certificate, said defendant herein, namely, said Lower Columbia Fire Relief Association, issued to plaintiff its certain certificate of insurance No. 104, by the terms of which said Lower Columbia Fire Relief Association insured plaintiff against loss or damage by fire or lightning in the sum of $2,500 upon the following named property, to wit: $1,000 on foundry and boiler works; $1,200 an shafting; and $300 on office building--and by the terms of said certificate of insurance, said Lower Columbia Fire Relief Association promised and agreed to make good with plaintiff herein all such loss or damage, not exceeding the sum of $2,500 which should happen by fire to said property during the term of five years from the 24th day of April, 1919, at 12 o'clock noon, to the 24th day of April, 1924, at 12 o'clock noon, and that said loss should be paid to said plaintiff within 60 days after notice and proof should have been furnished by plaintiff and received by said lower Columbia Fire Relief Association.

That on the 24th day of June, 1922, all of the property covered by said certificate of insurance was totally destroyed by fire. That thereafter plaintiff duly notified the association of the fire and furnished it due proof of loss in excess of the amount covered by the certificate.

That R R. Ryan was the duly authorized and acting agent for the association in the Salem district where plaintiff's property was situated. That, upon being notified by the association of the assessment, the failure to pay which is urged herein as a defense, plaintiff requested of R. R. Ryan an extension of time within which to pay the same, and an extension of 90 days within which to pay such assessment was thereupon granted by Ryan to plaintiff. That Ryan acted as agent for said association for a period of seven years, and, prior to granting plaintiff such extension within which to pay his assessment, had granted many other members of the association...