Abbildungen der Seite
PDF
EPUB

(Mass.), 319; People's Eq. Ins. Co. v. Babbitt, 7 id. 235. Members may be credited with payments on a prior illegal assessment and the amount included in the new assessment. People's Eq. Ins. Co. v. Petitioners, 9 Allen (Mass.), 319. Any overlay may be forbidden by statute. Sinnissippi Ins. Co. v. Taft, 26 Ind. 240. The length of time during which the insured has been a member is not to be considered in his favor. All persons who were members on the day of the loss are equally liable. Herkimer Co. Ins. Co. v. Fuller 14 Barb. (N. Y.) 373; Planters' Ins. Co. v. Comfort, 50 Miss. 662. Where the policies ran for different periods, the court allowed a division of the premium by the years of the policy, though the premium on long policies was smaller) Citizens' Ins. Co. v. Sortwell, 10 Allen [Mass.], 110), and the court have allowed other expenses and debts to be averaged in order to reach a practical and fair result. People's Equitable Ins. Co. v. Petitioners, 9 Allen (Mass.), 319. A new assessment for the whole of the premium note is good, although there is another assessment on it outstanding, uncollected. Sands v. Sweet, 44 Barb. (N. Y.) 108. No allowance is to be made for a return premium where the company is insolvent and all policies are canceled. Com. v. Union Ins. Co., 112 Mass. 192. Accrued profits, although credited to the policies, remain absolute funds of the company till the policies are terminated. Id. The risks in mutual companies are often divided into classes. This can only be done by authority of the charter, or a vote of the members. Thomas v. Achilles, 16 Barb. (N. Y.) 491; Currie v. Mut. Ass. Soc., 4 H. & M. (Va.) 315; People's Equitable Ins. Co. v. Arthur, 7 Gray (Mass.), 267. But assessments in each class are made by the company (Kelly v. Troy Ins. Co., 3 Wis. 254), and must be kept separate for each class. Allen v. Winne, 15 Wis. 113. But if the assets of one class fail, resort may be had to any surplus in another class. White v. Ross, 15 Abb. Pr. (N. Y.) 66. In some cases there is a provision that on failure to pay an assessment the whole note may be recovered. Jones v. Sisson, 6 Gray (Mass.), 288. But if an assessment has been paid, this must be deducted and no interest is allowed. Bangs v. Bailey, 37 Barb. (N. Y.) 630; Bangs v. McIntosh, 23 Barb. (N. Y.) 591. If the by-laws treat the note as a payment in advance of the premium, the failure to pay such assessment does not suspend the insurance, as a failure to pay an ordinary assessment would. Rix v. Mutual Ins. Co., 20 N. H. 198. It is ordinarily required that notice of the assessment shall be given to the insured. If any mode of notice is provided, it must be followed, otherwise personal notice is proper. Jones v. Sisson, 6 Gray (Mass.), 288; York County Ins. Co. v. Knight, 48 Me. 75. The notice need not state the amount due on each note. At

lantic Ins. Co. v. Sanders, 36 N. H. 252; Bangs v. Duckinfield, 18 N. Y. (4 Smith) 592. Where the notice is required to be by mail, it may be sent to the residence named in the policy, unless the company has notice of a change. Lothrop v. Greenfield Ins. Co., 2 Allen (Mass.), 82. The notice is a condition precedent to an action (Williams v. Babcock, 25 Barb. [N. Y.] 109), but actual notice has been held sufficient where the company is in the hands of a receiver. Cooper v. Shaver, 41 Barb. (N. Y.) 151. It cannot be given before the assessment is made. Bangs v. McIntosh, 23 Barb. (N. Y.) 591. Assessments may be voted at any regular meeting of the directors, although a special meeting for that purpose is authorized by the by-laws. Bay State Ins. Co. v. Sawyer, 12 Cush. (Mass.) 64; Fayette Ins. Co. v. Fuller, 8 Allen (Mass.), 27. The notice, if personal, is to be given to the person who is liable to pay it, whether the original member, or an assignee who has been admitted as a member in his stead, and has assumed the liabilities of the premium note. Brannin v. Mercer County Ins. Co., 28 N. J. 92; Bowditch Ins. Co. v. Winslow, 3 Gray (Mass.), 415. Where the statute, as in many States, gives mutual insurance companies a lien on the estate insured, it has been held that they could not insure in another country where they could have no such lien. Genesee Ins. Co. v. Westman, 8 Up. Can. 487, but the contrary was held in regard to personal property in Western V. Genesee Ins. Co., 2 Kern. (N. Y.) 258. Where they have not complied with the laws of the State in which they undertake to insure, the company may be liable to pay losses and yet be unable to collect any assessment. Washington County Ins. Co. v. Dawes, 6 Gray (Mass.), 376. It is a common provision that the directors of a mutual insurance company shall be personally liable for failure to lay an assessment when required to pay the debts. Where this liability was imposed for failure to pay a loss on a policy it was strictly construed, and it was held that the insured had no such remedy to enforce the payment of a note by which the policy had been paid. Raber v. Jones, 40 Ind. 436. If a new assessment is necessary to meet a deficiency caused by a failure to collect the first in full, it must be laid on the same members. Farmers' Ins. Co. v. Chase, 56 N. H. 341.

TITLE V.

REMEDIES.

ARTICLE I.

T

OF REMEDIES IN GENERAL.

Section 1. In general. The remedies for wrongs, committed by either party to the contract, are redressed by the same courts, and by the same proceedings, as are other wrongs sounding in contract. The first question which can well arise is whether any contract has been made. Where a contract has been completed, and for any reason the insurer refuses to deliver the policy, the insured may apply in equity to compel a delivery, and if in the meantime a loss has occurred, the court will also decree a payment of it. Rhodes v. Railway Passengers Ins. Co., 5 Lans. (N. Y.) 71; Union Ins. Co. v. Com. Ins. Co., 2 Curt. C. C. 524; S. C., 19 How. 318; Fried v. Royal Ins. Co., 50 N. Y. (5 Sick.) 243; Franklin Ins. Co. v. Hewitt, 3 B. Monr. (Ky.) 231; Harris v. Columbus County Ins. Co., 18 Ohio, 116. Either party may also complain that the policy as existing, does not express the contract as entered into, and may ask a court of equity to reform it. Barrett v. Union Ins. Co., 7 Cush. (Mass.) 175; Oliver v. Com. Ins. Co., 2 Curt. C. C. 277; Phænix Ins. Co. v. Hoffheimer, 46 Miss. 645; Longhurst v. Star Ins. Co., 19 Iowa, 364; Van Tuyl v. Westchester Ins. Co., 55 N. Y. (10 Sick.) 657; Nat. Traders' Bank v. Ocean Ins. Co., 62 Me. 519; Keith v. Globe Ins. Co., 52 Ill. 518; 4 Am. Rep. 624; Neville v. Merchants' Ins. Co., 19 Ohio St. 452; N. Y. Ice Co. v. Northwestern Ins. Co., 23 N. Y. (9 Smith) 357. The court will also, at the same time, decree performance of the contract as reformed. The clearest evidence, free from reasonable doubt, will be required. Id. Nat. Ins. Co. v. Crane, 16 Md. 260; Suydam v. Columbus Ins. Co., 18 Ohio, 459; Cooper v. Farmers' Ins. Co., 50 Penn. St. 299; Tesson v. Atlantic Ins. Co., 40 Mo. 33; Woodruff v. Columbus Ins. Co., 5 La. Ann. 697. Where the insured had first brought suit on the policy, and being defeated, asked the court to reform it, his application was refused. Thwing v. Great Western Ins. Co., 111 Mass. 93. The mistake must be a mutual one, and not caused by the fault of the party asking a reformation. N. Y. Ice Co. v. Northwestern Ins. Co., 31 Barb. 72; Cooper v. Farmers' Ins. Co., 50 Penn. St. 299. A mistake in the meaning of the words used will justify a reformation. The change will not

affect proofs already made. Maher v. Hibernia Ins. Co., 67 N. Y. (22 Sick.) 283. In cases where, for any reason, the premium having been paid, the contract is never consummated, or the risk never attaches, or the policy is void ab initio, the premium may be recovered back, even on a count in a declaration for a loss on the policy. Clark v. Manufacturers' Ins. Co., 2 Wood. & M. (C. C.) 472; Mutual Ass. Co. v. Mahon, 5 Call. (Va.) 517; Tyrie v. Fletcher, Cowp. 668; Fowler v. Scottish Eq. Ins. Co., 28 L. J. Ch. 225; Rochester Ins. Co. v. Martin, 13 Minn. 59; Foster v. U. S. Ins. Co., 11 Pick. (Mass.) 85 So, where there are two risks, and one never attaches, the premium, so. far as applicable to that, may be recovered back. Bunyon on Ins. 95. Of course, if the contract is once complete, no subsequent breach can entitle the insured to a return of the premiums (Bermon v. Wood bridge, 2 Doug. 781; Fulton v. Lancaster Ins. Co., 7 Ohio, 325; Merchants' Ins. Co. v. Clapp, 11 Pick. [Mass.] 56); though if, after forfeiture, he pays premiums by mistake, he can recover them back. McKee v. Phonix Ins. Co., 28 Mo. 383. But if the policy was obtained by fraud, or is illegal, nothing can be recovered back. Friesmuth v. Agawan Ins. Co., 10 Cush. (Mass.) 587; Hoyt v. Gilman, 8 Mass. 336; Browning v. Morris, Cowp. 790; Howson v. Hancock, 8 T. R. 575; Russell v. De Grand, 15 Mass. 35. A suit was sustained to revive a policy, where the insured had been unable to pay the premiums on account of a war, but had afterward tendered them to the company, who had refused to receive them, claiming a forfeiture. Cohen v. N. Y. Ins. Co., 50 N. Y. (5 Sick.) 610; 10 Am. Rep. 522. refusal to receive premiums, the insured was allowed to treat the contract as at an end, and to recover back the premiums paid. MoKee v. Phoenix Ins. Co., 28 Mo. 383. The insured cannot reject the policy, and recover back a premium paid before its issue, simply because some of its terms are unsatisfactory, nor because the agent had not complied with the law as to foreign companies. Leonard v. Washburn, 100 Mass., 251. Directors who make, or permit, false statements as to the assets and condition of an insurance company, are personally liable to one who is induced thereby to insure. Salmon v. Richardson, 30 Conn. 360; Pontifex v. Bignold, 3 M. & G. 63; Brown v. Downell, 49 Me. 421; Tibbetts v. Hamilton Ins. Co., 3 Allen (Mass.), 569. A mutual company may be compelled to readjust and correct a dividend to its members. Luling v. Atlantic Ins. Co., 45 Barb. (N. Y.) 510; S. C., 51 N. Y. (6 Sick.) 207. The insurers may also have a remedy to compel the surrender of a policy obtained by fraud, or mistake, even after an assignment for value with out notice. British Eq. Ass. Co. v. G. W. Railway, 20 L. T. (N. S.)

On a wrongful

422; Commercial Ins. Co. v. McLoon, 14 Allen (Mass.), 351; French v. Connelly, 2 Anstr. 454. But if the matter can as well be set up as a defense to an action at law, the court may refuse to interfere. Phoenix Ins. Co. v. Bailey, 13 Wall. (U. S.) 616. If a loss be paid under a mistake of facts pertaining to the loss, which would have been a defense, and which the insurers were not in fault in not knowing, it may be recovered back. Mut. Life Ins. Co. v. Wager, 27 Barb. (N. Y.) 354; Hartford Ins. Co. v. Mathews, 102 Mass. 221; Berkshire Ins. Co. v. Sturgis, 13 Gray (Mass.), 177; McConnell v. Delaware Ins. Co., 18 Ill. 228. Thus where the insurers were ignorant of a forfeiture by subsequent insurance, they were allowed to recover back the amount of a loss which they had paid. Columbus Ins. Co. v. Walsh, 18 Mo. 229. This, however, only applies where there has been no judgment against them for the loss, for such judgment is conclusive in any subsequent action. Mutual Life Ins. Co. v. Wager, 27 Barb. (N. Y.) 354; Homer v. Fish, 1 Pick. (Mass.) 435. Foreign insurance companies which are prohibited from insuring till they have complied with certain conditions, cannot recover on their premium notes till such compliance. Gen. Ins. Co. v. Phillips, 13 Gray (Mass.), 90; Ætna Ins. Co. v. Harvey, 11 Wis. 394; Cincinnati Ins. Co. v. Rosenthal, 55 Ill. 85; 8 Am. Rep. 626; Ford v. Buckeye State Ins. Co., 6 Bush (Ky.), 135; National Ins. Co. v. Pursell, 10 Allen (Mass.), 231. The policies, however, are generally held valid. Columbus Ins. Co. v. Walsh, 18 Mo. 229; Leonard v. Washburn, 100 Mass. 251; contra, Rising Sun Ins. Co. v. Slaughter, 20 Ind. 520.

§ 2. Remedy by action. We have already considered the preliminaries to any right of action by the insured on the policy. He must furnish the proofs, and all other evidence which the contract requires, and wait the period thereafter fixed by the policy, which is usually sixty days. If the insurer neglects or refuses to pay the sum claimed after the loss is payable, the insured may proceed by action at law. This suit may be brought either in his own county or that where the insurer is located. If the insurer is a foreign corporation, they are in most States required by law to appoint an agent on whom service of process can be made. If there is such agent, service must be on him, and not on their ordinary agents to solicit insurance. Thayer v. Tyler, 10 Gray (Mass.), 164. If the insurer is a foreign corporation, the insured will also have his election to sue in the Federal courts. The defendant may also remove the action from the State to the Federal courts, on complying with the statute for that purpose, unless they have waived the right to remove it. Glen's Falls Ins. Co. v. Jackson Circuit Court, 21 Mich. 577; 4 Am. Rep. 504. The action, when once begun, is to be tried

« ZurückWeiter »