Goldberg v. Seneca, Sigel & Rudolph Mutual Fire Insurance

170 Wis. 116 | Wis. | 1919

Eschweiler, J.

The defendant is a town mutual fire insurance company organized under the provisions of secs. 1927 to 1941, Stats.

Sec. 1927, relating to the organization of such corporations, provides that the persons subscribing to original articles and such as shall afterwards be insured shall be a corporation ; and sec. 1933 provides that every person to whom any policy is issued by such corporation shall be deemed a member of the same.

The plaintiff, by reason of other insurance held by him at the time of his making the application involved in this case, was a member of such defendant corporation. Being such member, he is chargeable with knowledge of the conditions of insurance as they are determined by the by-laws of such corporation. Bretzlaff v. Sick Ben. Soc. 125 Mich. 39, 83 N. W. 1000; Davidson v. Old People’s M. B. Soc. 39 Minn. 303, 39 N. W. 803; Supreme Lodge of K. P. v. Graham, 49 Ind. App. 535, 97 N. E. 806; Brashears v. Perry Co. F. P. Ins. Co. 51 Ind. App. 8, 98 N. E. 889.

The court below was therefore right in holding that under by-law No. 10, above quoted, it was essential that the application- for insurance should at least have been received by the secretary before any liability could be fastened upon the defendant for any loss occurring subsequent to the date of the application and prior to its receipt.

There is nothing in the record here upon which could be predicated a waiver of such provisions of the by-laws as in the case of Ledebuhr v. Wis. T. Co. 112 Wis. 657, 88 N. W. 607.

Such membership also prevents him from successfully asserting, in the face of such positive restriction as is embodied in this by-law, the well recognized doctrine of the validity of parol contracts of insurance between a stranger and an insurance company, as in such cases as Whitman v. Milwaukee F. Ins. Co. 128 Wis. 124, 107 N. W. 291, and cases cited; King v. Hekla F. Ins. Co. 58 Wis. 508, 17 N. W. 297; McQuaid v. Ætna Ins. Co. 226 Mass. 281, 115 N. E. 428.

Appellant urges that the last sentence of sec. 1933, Stats., which,reads as follows: “He shall also, at the time of effecting such insurance, pay such percentage in cash and such reasonable sums for á policy as may be required by the rules or by-laws/’ evidences a statutory declaration that the insurance by such a corporation as this, and to which said section relates, becomes effective at the time of such payment and the signing and delivering to the agent of the application, subject only to the right of cancellation or refusal of the application and the returning it to the applicant under by-law No. 10, above quoted. ’ We cannot so construe'it nor see that force is added to appellant’s suggestion in that, behalf by the provisions of the bond required of and given by the agent containing the recital that such agent was chosen and appointed “for the purpose of soliciting and writing insurance for said company,” for the same bond recites further that such agent “shall not solicit or accept insurance, except in accordance with the by-laws of said company.” This requires the affirmance of the judgment of the court below upon the record as it then stood.

Whether or not an action in tort might be maintained against the defendant company or its agent for what might be held to be a possible breach of a (iuty to forward such application without unreasonable or unnecessary delay after the receipt of the application and premium by the agent, is a question which we do not care to determine upon the present record. Neither do we feel that we should remand this case under the provisions of sec. 2836& for such purpose, especially as the present judgment in this contr'act action would be no bar to such a tort action if the facts warrant such.

By the Court. — Judgment affirmed.