Boone County Home Mutual Insurance v. Anthony

| Mo. Ct. App. | Jan 11, 1897

Ellison, J.

Statement. Plaintiff is a local fire insurance company in Boone county, organized under the provisions of the act of 1874 governing “local . . ,, _ ~ , insurance companies.77 Laws 1874, p. 90. Plaintiff instituted this action on a premium note given by defendant who was a member of such company. An assessment of fifteen per cent of the note was made against defendant, under the provisions of sections 12 and 13 of said act, to pay defendant’s portion of a loss happening to one of the members of the company. Defendant failed to pay the assessment and continued in such failure for more than the time allotted him by the act aforesaid, viz., thirty days. Judgment was rendered for plaintiff for the amount of the assessment and interest.

The defense involves the question whether the act of 1874 aforesaid is still in force, or whether it has been repealed by our insurance laws as contained in chapter 89, of the statutes of 1889. The defense interposed is founded on the provisions of section 5888, of chapter 89 aforesaid, which provides for the publication in. a newspaper of a notice of tfye assessment. This was not done in this case, for the reason that it was not required by the act of 1874.

s^t1TuUcSTcon‘ surance.111" We are of the opinion that the laws of 1874 aforesaid have not been repealed by either the revision of 1879 or that of 1889. There are three ways in which a statute may be repealed: 11 First, by a repealing clause; second, by such repugnance that the two laws may not, in reason, both stand; third, by a revision of the whole subject-matter of the former law, which is evidently intended as a substitute for it.” Young v. R'y, 33 Mo. App. 509" court="Mo. Ct. App." date_filed="1889-02-04" href="https://app.midpage.ai/document/young-v-kansas-city-st-joseph--council-bluffs-railway-co-6615917?utm_source=webapp" opinion_id="6615917">33 Mo. App. 509; State ex rel. v. St. Joseph Convent, 116 Mo. 575" court="Mo." date_filed="1893-06-13" href="https://app.midpage.ai/document/state-ex-rel-dosenbach-v-st-josephs-convent-of-mercy-8010981?utm_source=webapp" opinion_id="8010981">116 Mo. 575.

In this case, there is no repeal in terms of the laws of 1874. Nor is there any repugnance between that law and the general law of insurance found in either the Revised Statutes of 1879 or 1889. Both may well stand, find full application to the respective modes of insurance mentioned, and each may be duly enforced. That the law of 1874 relating to local companies has not been thought to be inconsistent with the general statutes of insurance is evident from the fact that those portions of the general statute which are thought to be • inconsistent or repugnant were first enacted, substantially in their present form, in 1869, and when the law of 1874, nowin question, was enacted, it was, of course, not thought to be, and was not, irreconcilable with the general insurance laws then existing and which were enacted five years before. Yet it is the law of 1869 which has been substantially (so far as applied to this case) carried into the revisions of 1879 and 1889. And to maintain that these revisions are repugnant to the law of 1874 is tantamount to stating that the latter law and the general insurance law of 1869 were repugnant. Yet no one would contend that they were.

Coming, then, to the third mode of repeal, we think there has been no repeal by way of a substitute. There are two matters appearing, one in each statute, that, taken together, give unmistakable evidence that the revision was not intended as a substitute for the law of 1874. In the latter act is found a provision in section 26 that “All companies incorporated under the provisions of this act are hereby exempted, from the operation of all other general statutes of this state in regard to insurance. * * And in the revision of 1889, section 5909, amended in Acts 1891, page 165, the foregoing provision is reenacted. Indeed, it seems to have been largely the purpose of that section to prevent the very construction now insisted upon by defendant. For it not only reenacts the provision aforesaid, but it specially provides that no provision of the general insurance law “shall be so construed as to impair, or in any manner interfere with any of the rights or privileges” of local companies.

II. The policy issued to defendant and for which the note in suit was given, insured defendant for a space of five years. The premium note reads as follows :

“$450.00. Columbia, Mo. April 30, 1889.

“For value received; in policy No. 1514 issued by the Boone Co.- Home Mutual Fire Insurance Company, I hereby promise to pay to said company four hundred and fifty dollars, in such installments or assessments • as may be required by the directors of said company, to be made according to the laws governing said company, and the by-laws thereof — it being agreed that a failure to pay any assessment shall entitle said company to collect the whole amount of this note.”

The following is a provision of the policy.

“It being fully understood that a failure to pay any assessment made on the assured’s premium note shall suspend this policy and insurance until such assessment shall be paid, reference being had to his application of even number herewith, filed with the secretary of the company, for a more particular description, and as a part of this policy, during the term of five years, commencing at noon on April 3, 1889, and ending at noon on the same day of the same month, 1894.”

tion of contract: loss, assessment. The loss for which defendant was assessed occurred before defendant’s contract of insurance expired; but the assessment against defendant for his portion of the loss was not made until _ after the insurance expired. Defendant contends that the plaintiff company had no authority to assess him after the expiration of the contract, notwithstanding it was for a loss occurring before. We do not so construe the contract. ' The consideration for the note which plaintiff received was insurance for the period named. The consideration which the company received was the mutual liability which the defendant assumed with other members, to pay his portion of any loss which occurred while he had the benefit of the insurance. The fact that the assessment was not made until after the defendant’s term expired ought not to affect the question. Certainly, this is the right view of the matter, for any other view would allow defendant his insurance against loss during a time when he refuses to aid in paying a loss to one of his brother members.

This view is supported by the terms of the contract. For, notwithstanding the wording of the policy is not clear as to when an assessment shall be made, yet we look upon the note and the policy as one contract. And it is provided in the policy that the law of 1874, authorizing the organization of the company, shall be a part of the contract. That la’w provides in section 10, that at the expiration of the term of insurance, the note or such part of the same as may be “unpaid after deducting all losses and expenses accruing during said time,” shall be returned “to the signer of the note.” It is further provided in section 11, that: “every member of said company shall be and hereby is bound to pay his proportion of all losses happening or accruing in and to said company.”

In addition to these provisions, the whole scope of the act shows it to be the intent and meaning of the law that the assured member shall be liable for his proportion of losses which occur during his membership. We therefore hold that the fact that the assessment was made after his policy had expired can not avail defendant as a defense. We think the circuit court gave the proper construction to the statutes and the contract, and hence affirm the judgment.

All concur.