Tippett v. Farmers' Mut. Fire Ins. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Arnold
• Citation: Tippett v. Farmers' Mut. Fire Ins. Co., 47 S.W.2d 225 (Mo. App. 1931)
• Decision Date: 07 December 1931
• Docket Number: No. 17019.,17019.
• Parties: TIPPETT v. FARMERS' MUT. FIRE INS. CO.

47 S.W.2d 225

TIPPETT v. FARMERS' MUT. FIRE INS. CO.

No. 17019.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Rehearing Denied January 11, 1932.

Certiorari Denied February 6, 1932.

Appeal from Circuit Court, Chariton County; Paul Van Osdol, Judge.

Action by Mary E. Tippett against the Farmers' Mutual Fire Insurance Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

John D. Taylor, of Keytesville, for appellant.

Collet & Son, of Salisbury, for respondent.

ARNOLD, J.

This is an action on a fire insurance policy. The case was tried before the court without the aid of a jury, resulting in a judgment for the defendant. Plaintiff has appealed.

The facts show that defendant is a farmers' mutual fire insurance company, with its principal place of business located at Mendon, Chariton county; that on the 19th day of December, 1926, defendant issued to plaintiff its policy of insurance in the sum of $6,800, insuring certain items of her farm property for a term of five years, the premiums or assessments to be payable annually. On February 3, 1930, a fire occurred destroying property in the amount of $2,500 covered by the policy. Defendant refused payment for the reason that the assessment that was due at the time of the loss had not been paid.

The by-laws of the defendant, which were a part of the policy, provided that: "Section 9. When a special assessment is levied by the Executive Committee, it shall be the duty of the Secretary to give notice to each policy holder of such assessment and the amount due from each policy holder respectively, on account of such special assessment, and it shall be the duty of each policy holder or his or her representative to remit to the Secretary within thirty days from the giving of such notice, the amount due and if payment be not made within that time the insurance under such policy shall be suspended, and after sixty days from the date of such notice, such policy shall be absolutely void."

On the 1st day of December, 1929, an assessment in the sum of $34 became due on the policy. On or about said day, in pursuance to the terms of the policy, a notice of said assessment was mailed to plaintiff. This notice recited that an assessment had been made upon the members which was due on January 1, 1930, which must be paid within thirty days or by February 1, 1930; that, if the assessment was not paid by February 1, 1930, the policy would be suspended and the company would not be liable for any loss until the policy was reinstated by the payment of the assessment, which must be done within thirty days after February 1, 1930; that after the expiration of that time the insured could not insure with the company until all back assessments had been paid and the money received at the company's office in Mendon. The notice stated that the assessment could be paid at any one of twenty-one banks (mentioning them) scattered over a wide territory in the same county in which Mendon is situated and in adjoining counties, or at one of two stores mentioned in the notice. It then stated: "We suggest that you remit direct to the office of the Secretary, if possible. * * * The company will not be liable for any loss, should any occur, after Feb. 1, 1930, until you reinstate by paying this assessment. Please be prompt in the payment of your assessments."

The notice had a detachable slip reading as follows:

"W. H. Mayo, Secretary: Please find enclosed $34.00 amount due on policy below for Assessment No. X-29.

Policy No. 14992       Book 32     Page 3
                Date ____  1930
                Name of Insured ____
                Postoffice ____
                

"To the Bank: Have policy holder sign, detach and return slip with remittance. After settlement with Secretary February 1, report all subsequent payments immediately, as reinstatement of insured cannot be made until this report is received."

Plaintiff did not remit the assessment until the 3d day of February, 1930, at which time she deposited in the post office at Keytesville, before closing time, a letter containing a check covering the assessment in question, bearing date of January 30, 1930. There were sufficient funds in the bank upon which it was drawn to pay the check. Said letter was properly stamped and addressed to the defendant. About 9:30 p. m. of February 3, 1930, and after the deposit of the letter, the fire occurred. The letter containing the check did not reach defendant's office in Mendon until the morning of the 5th day of February, 1930. There is no evidence of the usual time required for the transmission of mail from Keytesville to Mendon. Defendant learned of the loss on the same day that it received the check, and on that day it returned the check to the plaintiff denying liability solely on the ground that the check should have been in the home office at Mendon prior to the occurrence of the fire to constitute payment of the assessment.

The facts further show that defendant had been accustomed to receiving by mail remittances of assessments from its members.

The theory of the court in disposing of the case, as disclosed by its declarations of law given and refused, was that, as the assessment was not paid until after February 1, 1930, the policy was suspended...