Breakstone v. Appleton Mutual Fire Insurance

149 Wis. 303 | Wis. | 1912

Maeshall, J.

As indicated in the statement, the statute in force at the date of the policy became a part of it, regardless of the condition when appellant was organized and that the then existing statute was embodied in its articles of organization and indorsed upon such policy. In whatsoever respect the law and language of the policy differ, the former is paramount. The feature of the statute, as its terms plainly indicate, as to publishing notice of an assessment and proof thereof being “conclusive evidence of notice of such assessment” deals only with the subject of proof, — not with the assessment itself. It will be noted that duty to publish depends upon completion of the assessment, and the words “shall be conclusive evidence” by reasonable, if not necessary inference, suggest that the particular method of proof was not intended to be exclusive. Ey the terms of the statute, upon an assessment being completed, the duty to call in the proceeds arises, to be performed in due course, independently of the duty to publish.

By unmistakable language, it is provided that, — an assessment having been levied and notice within thirty days thereof given to a policy-holder by letter or postal card, stating the amount of the assessment, the sum due from such policyholder as his share thereof, and the time within which and to whom payment is to be made, such time to be not less than thirty nor more than sixty days from the date of such notice as the board of directors may, at the time of making the assessment, have determined,' — payment must be made within such time or the policy will be in suspension during the period of delinquency. So the forfeiture clause depends for vitality upon the making of the assessment, notice thereof by mail to policy-holders, as indicated, and a default, regardless of the requirement for publication of notice.

Now there being no question but that the assessment was made, that notice thereof was sent to respondent within the time required by law and received, in due course, and that there was a failure to pay in time, such failure suspended the policy, if the notice complied with the statute. If it did not, time for payment of the assessment had not commenced to run against respondent at the time of the fire. As stated in Milwaukee T. Co. v. Farmers’ Mut. F. Ins. Co. 115 Wis. 371, 91 N. W. 967, it matters not that, though some particular fact required to be stated in the notice was omitted, respondent was not prejudiced thereby. The law made operation of the forfeiture clause dependable upon notice of a particular character. Therefore, if any fact required to be stated was omitted from the notice, there was no default.

It seems that one of the essentials of an efficient notice is a statement of tbe amount of tbe assessment. Not tbe amount of losses to be provided for, nor tbe rate of assessment; but tbe gross amount levied upon tbe particular class of policies subject to assessment. We are unable to find anything of that sort in tbe notice in question. It states tbe amount of losses to be paid and insufficiency of funds therefor, rendering tbe mating of an assessment necessary; thus clearly indicating that tbe amount of tbe assessment was different from tbe amount of losses waiting for payment. Tbe specified per cent, of assessment “upon tbe premium charged” merely referred to tbe rate of assessment. That did not indicate tbe amount of tbe assessment nor furnish means for determining it by computation. So there does not seem to be any escape from tbe conclusion that a very significant feature of an efficient notice to start time running for payment of tbe assessment was wholly omitted, rendering tbe notice insufficient as tbe trial court held.

By the Gourt. — Judgment affirmed.