Livingston v. Cypher

220 N.W. 721 | Mich. | 1928

The learned trial judge was of the opinion that the case ofPatrons' Mutual Fire Ins. Co. v. Brinker, 236 Mich. 367, was controlling, and stated that but for that case he would hold with plaintiff. We are persuaded that the instant case is clearly distinguishable from that case. In that case the defendant had taken out and paid for insurance in the same way he would have bought insurance in an old line company; the charter at the time the policy was issued did not permit assessment on that class of insurance; having bought and paid cash for his insurance, this court held he could not be called upon by an amendment to pay for it again by way of an assessment. The insurance there involved was similar to class C in the instant case. The case is further distinguishable in that the company there was not in liquidation. While section 13 of chapter 4 of part 4 of Act No. 256, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 9100 [275]), provides for ratable assessments, section 16 (§ 91.00 [278]) recognizes the right to classify risks.

The insurance defendants took out required them to pay assessments to cover losses in the kind of risks then insurable by the company, and which although no different are now known as class A and class B. They are by these assessments now required to pay for such loss and no others. They are not now required to pay for losses in class C or any other class. They pay the same as if class C did not exist. They are called upon to pay not a penny more nor a penny less than they would be called upon to pay if class C had not been created. By the act of 1919, farmers' mutuals were permitted to enter new and broader fields. Manifestly, any insurance company insuring different classes of property, and dealing with such different classes in different manner, must have the right to classify. They cannot insure all the different classes at a flat rate. This company segregated the business so that, although it was taking on new business and doing it in a new way, it kept intact the old business, and, as pointed out, defendants suffered not a penny by the amendments to its charter. But beyond that, under the agreement in the policy, the defendants were bound by the amendments to its charter. Wineland v. Maccabees of the World,148 Mich. 608; DeGraw v. Supreme Court I. O. F., 182 Mich. 366;Brown v. Great Camp K. O. T. M. M., 167 Mich. 1230;Williams v. Supreme Council C. M. B. A., 152 Mich. 1. We conclude the trial judge was in error in directing a verdict for defendants. He was also in error in refusing to admit exhibit "C" which was not an offer of compromise.

The judgment will be reversed and a new trial granted. Plaintiff will recover costs of this court.

NORTH, WIEST, CLARK, POTTER, and SHARPE, JJ., concurred. FEAD, C.J., and McDONALD, J., did not sit.