91 W. Va. 468 | W. Va. | 1922
This action at law is upon an insurance policy issued by a mutual fire insurance association to the plaintiff. The funds out of which fire losses were paid by the association were derived from assessments made upon its members at irregular intervals when fire losses occurred.
The association levied assessment No. 8, and notices thereof to its various members, including the plaintiff, were placed in envelopes addressed to the last post office address given, as shown by the boohs of the association, and deposited in the post office at Fairmont, West Virginia, on or about July 1, 1915. ' The plaintiff, whose building was insured for $1,100.00, resided at Booher in Tyler County. The policy required payment of such assessments within sixty days after the delivery of notice thereof, and neglect or refusal to pay the same within sixty days after the delivery of the notice rendered the policy null and void at the end of said sixty days.
Plaintiff’s building, on which he had taken out the insurance, was destroyed by fire on September 2, 1915, and the association refused to pay the loss on the ground that the policy had become null and void and the insurance forfeited at the time of the fire, for failure of the assured to
Upon the trial plaintiff attempted to prove that some time in the month of August, 1915, he had paid the amount of the assessment, the sum of $3.75. This contention was found against him by the jury, in answer to one of the interrogatories propounded and submitted before they retired to consider their verdict. It was the theory of the plaintiff that the sixty days in which he had to pay the assessment began to run from the day he actually received the notice through the mail, which he stated to -be on the 6th day of July, 1915; whereas, it was the theory of the association that under the policy contract the sixty days began to run from the day on which the notice of assessment was mailed, and which it claimed to be July 1st. It seems that the jury had some trouble in arriving at its verdict; and when the jury was sent to its room for further consideration of its verdict one of the jurors propounded to the court the following question: “I believe the question, as I remember it, would you consider the delivery of the notice to the plaintiff when it was delivered to the post office at Fairmont or when it was delivered to his post office box at Booher?” The court replied: “In reply, the court instructs you that the law relating to it would date from the date of the mailing and the sixty days would be from that,” to which ruling of the court the plaintiff objected and excepted.
The issue is sharply drawn. In conformity with the court’s instruction, the jury returned a verdict for the defendant, and also found, in answer to interrogatory No. 2, that the association deposited the notice of assessment to the plaintiff at Fairmont not later than July 2d; and found, in answer to interrogatories Nos. 3 and 4, that the notice of assessment reached the post office and mail box of plaintiff on July 6th, and was received by him on that day. If the court’s instruction, as above set out, is proper, then the verdict for the defendant cannot be disturbed.
The clause in the policy over the construction of which
“In event any member of the Association shall neglect or refuse to pay over to the secretary the full amount of said assessments and calls within said sixty days after the delivery of said notice, the secretary is hereby authorized to proceed to collect the same in the name of the Association, together with the resulting damages, including a reasonable attorney’s fee, upon his premium obligation or otherwise and any member neglecting or refusing to pay such assessments calls within sixty days after the delivery of said notice so to do as aforesaid, then his insurance in the Association shall become null and void at the end of said sixty days, and shall so remain null and void thereafter until the insured shall fully pay the Association all assessments and calls, interest and attorney’s fees due the Association when, upon the payment of the same, his said insurance shall again become in full force and effect unless ordered cancelled by the board of directors.”
This case turns upon a proper construction of this clause of the policy with reference to giving notice of assessments and payment thereof within sixty days. Does a proper construction of this clause mean that the sixty days in which the assured is given for the payment of his assessment date (1) from the time the notice was placed in the post office at Fairmont; (2) when it actually reached the plaintiff on July 6th; (3) or when it should have reached him at his postoffice at Booher in due course of mail? It will be observed that the secretary is required to notify each member of the amount of the assessment and the time and place to whom it should be paid, which notice may be delivered per
It is well settled law that where doubts arise as to the proper construction of clauses in insurance contracts, that view of them must be adopted which is most favorable to the assured, and which will prevent a forfeiture of his rights under the policy. Forfeitures are never favored by the courts.
In the construction of similar clauses in insurance by-laws and policy contracts the courts have not been in accord. But a careful analysis of the decisions discloses that the differences are based on some peculiar wording in the bylaws or policy under consideration in each case. There are three classes of eases. One class holds that the delivery of the notice to the post office completes the service and that the limitation for payment begins from that time. However, decisions of this class are few, and we are cited to but two, and those are from the Supreme Court of Iowa, Ross v. Hawkeye Ins. Co., 83 Ia. 586, 50 N. W. 47, and McKenna v. State Ins. Co., 73 Ia. 453, 35 N. W. 519. We have been unable to find others of like import. Another class of cases
The case of Ross v. Hawkeye Ins. Co., supra, relied upon by counsel- for the Association, is distinguishable from the case under consideration. In the Ross case the statute of the state of Iowa provided for notice to the insured by the company of the- maturity of his premium note, and declares that “such notice may be served either personally or by registered letter addressed to the assured at his post office address named in or on the policy; and no policy of insurance shall be suspended for non-payment of such amount until thirty days after such notice has been served.” The court decided that service was complete, and thirty days began to run, as soon as the letter ivas mailed as provided by law. The court said in its opinion: “It is service, and not notice, that gives rise to the operation of the statute.” The by-law in the instant case (which simply incorporates the provisions of section 14 of chapter 55 of our Code) requires
The construction placed upon similar clauses by the courts in the second class of cases above cited appeals to us as the most sensible construction of clauses of this character in insurance contracts, and we concur in that construction, following the- well established rule by adopting that which is favorable to the assured. It follows that the construction given by the court in response to the question propounded by the juror is erroneous. Nor do we think that the instruction asked for by the plaintiff, to the effect that if the jury believe that the loss occurred “before the expiration of sixty days from the day the notice of assessment was delivered to the plaintiff at his mail box” should have been given. The day on which the notice would have reached the plaintiff in due course of mail was the time from which the sixty days should have been computed, and this should have been incorporated in the instruction.
It is argued for the Association that even if it should be held that the sixty days limitation begins to run from the time the notice should have been delivered to the assured in due course of mail, then the verdict and judgment should not be disturbed, because the notice was mailed, according to the evidence of the secretary, on the first day of July, and that by ordinary course of mail the letter should have reached the plaintiff’s post office on the evening of the following day, and hence the fire occurred after sixty days from the 2d day of July, counting twenty-nine days in July and thirty-one in August, making the limitation expire two days before the fire occurred. But it is not clear that the ordinary course of mail would have consumed only two days from the time it "was mailed until it should have reached
On this state of the record we cannot say with any degree of certainty what would have been the verdict if the jury had been instructed that the computation of the sixty days should have begun from the time when the notice should have been received by the defendant in the due course of mail. We cannot say that the special finding that the notice of assessment reached the post office of the- plaintiff on July 6th should have controlled the verdict. The verdict and judgment will be set aside and the case remanded for a new trial.
Reversed and remanded.