Allen v. Patrons' Mutual Fire Insurance Co. of Michigan, Ltd.

Brooke, J. (after stating the facts). Can plaintiff maintain his action upon a policy without first complying with the rules of the defendant association, of which he was a member ? Those regulations are plain and specific, and the right of the parties to contract with reference thereto is undoubted. The reasons which impel members of a mutual company to make such a contract with each other are obvious. It may be supposed that by reason thereof losses are settled more equitably and expeditiously and needless litigation avoided. Such contracts have been frequently upheld by this court. Van Poucke v. St. Vincent de Paul Society, 63 Mich. 378 (29 N. W. 863); Canfield v. Great Camp K. O. T. M., 87 Mich. 626 (49 N. W. 875, 13 L. R. A. 625, 24 Am. St. Rep. 186); Hembeau v. Great Camp K. O. T. M., 101 Mich. 161 (59 N. W. 417, 49 L. R. A. 592, 45 Am. St. Rep. 400); Fillmore v. Great Camp K. O. T. M., 103 Mich. [23] 437 (61 N. W. 785); Raymond v. Insurance Co., 114 Mich. 386 (72 N. W. 254); Russell v. Benefit Association, 116 Mich. 699 (75 N. W. 137); Harris v. Typographical Union, 144 Mich. 422 (108 N. W. 362); Conley v. Supreme Court I. O. F., 158 Mich. 190 (122 N. W. 567); Larkin v. Modern Woodmen of America, 163 Mich. 670 (127 N. W. 786). If plaintiff had made his claim under policy No. 9747 (the policy under which he brought suit), an adjustment might have been reached satisfactory to both parties. At any rate, he cannot avail himself of his legal remedy until he has exhausted the remedy provided by the reasonable rules and regulations of his society. Was policy No. 12,276 in force at the time of the fire ? The by-laws of defendant provide: “Sec. 22. All policies shall be signed by the president and the secretary, and shall take effect at twelve o’clock noon on the day of the date of the issue of the policy.” There is no dispute upon this record that the policy No. 12,276 was dated and signed August 19, 1909, the day before the fire. The records of the society, and they are not questioned, likewise show that the earlier policy was canceled on that day and the new policy put in force. This new policy was written and issued exactly in accordance with the terms of plaintiff’s application, dated July 31, 1909. Under these circumstances, and in the absence of any evidence of fraud or bad faith on the part of defendant, we think it is immaterial that plaintiff was not notified of the issuance of the new policy before the fire occurred and did not receive it until some three weeks after that event. If the second were the only policy, it could scarcely be contended by the company that it was not liable thereunder, because it had not reached the hands of the insured before the fire. It must be borne in mind that the defendant company has patrons in many widely separated localities, at a considerable distance' from the home office, which is located in Lansing. The rights of the parties [24] cannot be made to depend upon the speed or sloth with which clerical work is performed in the home office, nor upon the frequency or infrequency of mail delivery. We conclude, therefore, that at the time of the fire the second policy was in force. Upon this point the,following authorities may be consulted: Dibble v. Assurance Co., 70 Mich. 1 (37 N. W. 704, 14 Am. St. Rep. 470); Mallory v. Insurance Co., 90 Mich. 112 (51 N. W. 188); Michigan Pipe Co. v. Insurance Co., 92 Mich. 482 (52 N. W. 1070, 20 L. R. A. 277), and cases cited; Lum v. Insurance Co., 104 Mich. 397 (62 N. W. 562). Defendant does not deny its liability under the second policy. The loss under either policy, as to personal property, is the same and is agreed upon at $197.92. The liability of defendant under the second policy for loss upon the barn was limited to $250. These two sums aggregate $447.92. If plaintiff chooses to remit all in excess of this amount, judgment may be entered therefor; otherwise the judgment will be reversed, and a new trial ordered. In any event, defendant will recover costs of both courts. Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.