Plath v. Minnesota Farmers' Mutual Fire Insurance, 23 Minn. 479

Plath v. Minnesota Farmers' Mutual Fire Insurance

23 Minn. 479 | Minn. | 1877

Cornell, J.

The policy declared on in this case shows .that the consideration paid therefor by plaintiff was single and entire. The amount of insurance secured thereby was *482the gross sum of $1,150, distributed upon several distinct items of property, as therein specifically stated. It is well settled, by a uniform current of authority, that a contract of insurance of this character is an entirety, and indivisible, the sole effect of the apportionment of the amount of insurance upon the separate and distinct items of property named in the policy being to limit the extent of the insurer’s risk, as to each such item, to the sum so specified. 2 Pars. Con. (5th ed.) 519; Gottsman v. Penn. Ins. Co., 56 Pa. St. 210; Friesmuth v. Agawam Mut. Fire Ins. Co., 10 Cush. 587 ; Brown v. People’s Mut. Ins. Co., 11 Cush. 280; Bee v. Howard Fire Ins. Co., 3 Gray, 583 ; Kimball v. Howard Fire Ins. Co., 8 Gray, 33 ; Lovejoy v. Augusta Mut. Fire Ins. Co., 45 Me. 472; Richardson v. Maine Ins. Co., 46 Me. 394 ; Gould v. York Mut. Fire Ins. Co., 47 Me. 403 ; Barnes v. Union Mut. Fire Ins. Co., 51 Me. 110; Day v. Charter Oak Fire & Marine Ins. Co., 51 Me. 91.

Among the conditions of insurance named in the policy is one declaring, “in case the insured shall mortgage the property, without notifying the secretary, then the insured shall not be entitled to recover from the association any loss or damage which may occur in or to the property hereby insured, or any part or portion thereof.” As the contract of insurance was entire and indivisible, the legal effect .of a violation of this condition, if valid, on the part of the insured, bj' mortgaging any portion of the insured property, was to avoid the entire policy. The validity and binding obligation of such a condition in a policy has been too frequently considered and sustained by the courts to be longer open to inquiry or discussion. Savage v. Howard Ins. Co., 52 N. Y. 502, and authorities cited supra; Langdon v. Minn. Farmers’ Mut. Fire. Ass’n, 22 Minn. 193. It follows, if the insured in this instance, after the issuance of the policy and before the loss by fire, mortgaged any portion of the insured property, without notifying the secretary of the association thereof, it defeated her right of recovery, not *483■only as respects the loss of that portion covered by the mortgage, but the entire property embraced by the policy. The ruling of the district court, in its instruction to the jury upon this point, was clearly erroneous, and vitiates the verdict.

A further point is presented in regard to the notice which the insured was required to give, of the mortgage, to the company, under its by-laws, and the stipulation contained in the policy, both of which, it is conceded, entered into and formed a part of the contract of insurance in this case— whether a notice by mail was sufficient, when it was never in fact received by the secretary of the association.

The stipulation embodied in the policy required the secretan' of the company to be notified of the fact of the mortgage, by the insured, without specifying the manner in which it was to be done. The by-laws provided that the insured should “ make a representation, in writing, to the seeretaiy, stating the amount and to whom mortgaged, who should have power to give his assent to said mortgage, or to cancel the policy, as he should judge proper on examination of the same.” On the trial, testimony was introduced, ■on the part of the plaintiff, tending to show a service of this notice b}' depositing, post-paid, a letter containing the inquired information, and directed to the address of the secretary, at the company’s place of business. On the part of the defendant, testimony was introduced tending to disprove this fact, and to show that no such letter, and no notice whatever, were ever received by the company or its ■secretary. Upon this state of facts the court instructed the jury:

“1. That the notice required to be given to the secretary of the defendant, in case of mortgage upon property insured, need not bo a personal notice — that is, delivered to the secretary; but if the jury should find from the evidence that the plaintiff, in good faith, wrote to the secretary of and concerning the mortgage, and deposited said letter in *484the post-office at Sleepy Eye, properly addressed- aud' directed to the secretary of the defendant, postage paid, at his place of residence in Minneapolis, that would be a sufficient compliance with the by-laws, and a sufficient notice in law.

“ 2. That if they, (the jury,) should find the testimony of the witness Gustav Plath to be true, in respect to what he did to notify the secretary of the defendant, in good faith on his part, as the husband of the plaintiff, it would be such an attempt on the part of the plaintiff to notify the defendant as would excuse her from a literal compliance with the bylaws, and would be a sufficient notice in law.”

In each of these instructions it is erroneously assumed, as a matter of law, that a proper service by mail of the required notice, oven though never in fact received by the secretary, was a full compliance with this provision in the policy and by-laws on the part of the insured. The purpose of the stipulation in regard to notice ivas tó provide the secretary with actual knowledge of the desired fact, and this the insured obligated himself absolutely to do. Though unrestricted in his choice of means in doing it — save, perhaps, that it should be in writing — the risk ivas wholly his, and not that of the company. Nothing less than actual reception, by the secretary, of the information can bo regarded as sufficient in law to satisfy the requirements of the contract in this regard. Of course, as a matter of evidence, proof that a letter containing the information, addressed to the secretary, ivas put into the post-office, with the postage-paid thereon, and properly directed to him at the place where he usually received the mail of his company, Avould be sufficient to raise the presumption that it reached its destination, and Avas received by him, by due course of mail, and in the usual and regular time. 1 Greenl. Ev. § 40 ; 1 Taylor Ev. § 147 ; Com. v. Jeffries, 7 Allen, 548, 563. But this is a mere presumption of fact, for the consideration of the jury alone, and liable to be rebutted by *485«other evidence or proofs that the letter was never in fact received. There is no principle of the common law, how.ever, and no authority, so far as we are advised, to the effect .that-an obligation of this character in this kind of a contract is discharged by depositing in the post-office, properly addressed and directed, and with the postage paid, a letter containing the required notice, it being admitted that its destination was never reached. See Freeman v. Morey, 45 Me. 50 ; Greenfield Bank v. Crafts, 4 Allen, 447, 457.

A now trial must be granted on both the foregoi ug grounds.

The preliminary objection to the appeal, made by plaintiff’s 'first point, is not well taken. The only effect of the stipulation entered into between the parties, before the hearing of defendant’s motion for a new trial, so far as it affected its rights in respect to the motion, was to limit the grounds thereof as therein stated

Order reversed.