Blanchard v. Atlantic Mutual Fire Insurance

33 N.H. 9 | N.H. | 1856

Eastman, J.

The application was the foundation of the insurance. That was made by Gates. He also gave the premium note, and agreed to pay the assessments ; and the policy was issued to him upon the faith of the application.

There was no mutual contract between Blanchard and the company. He was not known to the defendants except through Gates. By the request and direction of Gates, and in consideration of the payments and undertakings made by him, the insurance was made payable, in ease of loss, to Blanchard. There was no consideration paid by Blanchard, and no engagements entered into by him ; and he was not a member of the company. Gates was the person insured ; it was with him that the contract was made, and he was the member. Nevins v. The Rockingham M. F. Ins. Co., 5 Foster 22; Rollins v. The Columbian M. F. Ins. Co., 5 Foster 205; Folsom v. The Belknap County Ins. Co., 10 Foster 231.

In the first case cited it was held that if a policy, issued by a mutual fire insurance company, provides that the insurance, in case of loss, shall be paid to a third person, the action to recover the loss should be in the name of the party to the policy who gives the premium note, and thereby becomes a member of the company.

At the time this application was made to the defendants and the insurance effected, a policy had been issued to Gates on the same property by the Union office. The policy from that office was dated on the 23d day of July, 1850, and the one in suit on the 29th of the same month. The charter and by-laws of the defendants was a part of the policy. By the sixteenth section of the charter it is provided that “ if insurance on any house or building, or other property, shall be and subsist in said company and in any other company, or from or by any other person or persons at the same time, the insurance made in and by this company shall be deemed and become void, unless such double insurance subsist with the consent of the directors, signified by indorsement on the back of the policy, signed by the president and secretary.”

This is a very material provision ; deemed so by all insurance companies; and, as a general thing, exists in substance in all contracts of insurance, whether made with stock or mutual companies.

By the express provisions of this sixteenth section of the charter, this policy was made void by the insurance in the Union company; and we can discover no way in which the plaintiff can be relieved from this provision. Cate was not the agent of the company, and they cannot be charged with any notice of the double insurance through him. He did the business for Gates and as his agent. The application which formed the basis of the policy contained no notice of the insurance by the Union company, nor is there any fact disclosed from which we can infer that the defendants had any knowledge of it till after the fire.

It can make no difference, either, that the insurance was made payable to Blanchard. The policy was in fact invalid from the beginning ; and whether the insurance was payable to him or to Gates, or to any other one, the liability of the company would not be changed.

But there is another ground of defence to this action, which shows that the defendants are not liable on this policy. By the first section of the act of incorporation, the company were empowered to make, establish, and put in execution such bylaws, ordinances and regulations, not being contrary to the laws of this State, as may seem necessary or convenient for their regulation and government, and for the management of their affairs. Under this section the company duly adopted, at a legal meeting, a by-law, by which it is provided that if the insured shall, for the space of ten days, neglect, when personally called on, to pay any assessment, the risk of the company on the policy shall be suspended till the same is paid.

This policy was issued on the 29th day of July, 1850, and subsequently an assessment was made against it, payable in February, 1851. Notice of the assessment was given to Gates; and in April following, and also in May and June, a personal demand was made upon him for the payment of the same ; and the assessment has never been paid. This non-payment suspended the risk on the policy, and at the time of the fire the policy, according to the by-law, was inoperative. The company saw fit to adopt this by-law, probably deeming it essential in order to insure promptness in its members in the payment of assessments, so that the directors might readily meet and pay all losses. It is not an unusual by-law in mutual insurance companies ; and, upon consideration, we are of opinion that it is not unconstitutional.

It was unnecessary to make any demand upon Blanchard for the payment of the assessment. The company had no claim upon him for its payment. He was not a member, and had made no contract to pay any assessments. Gates was the member. He had given his premium note, and had contracted to pay the assessments ; and he was the proper person on whom to make the demand, and the proper one to pay the assessments.

No question appears to be raised by the case as to the liability of the defendants to an action by Blanchard. According to the view which we have taken of- the liability of the company upon the policy, that question is unnecessary to be considered, because no recovery can be had upon the policy upon the facts stated; and the points in dispute may as well be considered in an action in the name of Blanchard as in the name of Gates. Upon the doctrine, however, of the cases before cited, the action should have been brought in the name of Gates.

We entertain no doubt of the correctness of the ruling of the court below, and there must be

Judgment on the verdict.