Milwaukee Trust Co. v. Farmers' Mutual Fire Insurance

■Dodge, J". The loss in this case having occurred during the term originally insured by the policy, no contention is, or successfully can be, made against the defendant’s liability, unless such policy has become terminated in some manner. None is suggested, except forfeiture under the by-law quoted in the statement of facts, by reason of nonpayment of an assessment duly made and duly notified. Under the statutes regulating this kind of insurance companies, of course no duty rests on the assured to pay assessments until notified to him in the manner there specified, and no doubt can be entertained that the notification which is claimed to warrant forfeiture under the by-law is the same notification required to be given in the case of an assessment by the statute (sec. 1935, Stats. 1898). That provides: “When such assessment shall have been completed, the secretary shall immediately insert a notice in one or more newspapers printed in the county or counties where such corporation is doing business, stating therein the time when such assessment was levied and the time when the- same becomes due; such notice together with proof of -the publication thereof shall be conclusive evidence of notice of such assessment to every member of the corporation; ’ the secretary shall also notify every such member, by letter or postal card sent to his usual post-office address, of the amount of such loss, and the sum due from him as his share thereof, and the time when and to whom payment thereof is h> be made, which time shall [375] not be less than thirty nor more than sixty days from the date of such notice.” It is contended that a notice was duly published in two newspapers of Waukesha county, and that, proof of such publication having been given, the plaintiff is conclusively proved to have been notified, wholly independently of the question whether a notice was also sent by mail as required. Notice of an assessment, to be of any practical force or significance, must be sufficient to enable the assured to know how much he is to pay, and, if the by-law is to be so read in connection with this clause of the statute that the newspaper publication is to be deemed the notification upon which forfeiture is predicated, the word “notification” therein must have been so used as to contemplate the required information of the amount of the assessment, so that the assured may know not only when to remit, but how much. An examination of the only proof as to the contents of the publication discloses entire absence of any such information. The newspaper publication was not offered in evidence, but was proved orally, and contained no hint or suggestion as to whether the assessment was one per cent, or the three and one half per cent, permitted by statute. It merely announced that an assessment had been levied on the 15th day of September, due on the 15th day of November. Hence, if we should adopt the construction of the statute contended for by the defendant, — that the publication was a sufficient notification to call into effect the forfeiture denounced by the by-law, — we should feel constrained to construe that word “notification” as requiring elements of information not conveyed by the publication in question; otherwise both the by-law and the statute would be unreasonable. Another construction of sec. 1935 suggested is that the word “notification,” as used in the by-law, contemplated both publication of a notice containing merely the information that some assessment had been levied, with the date of levy and date of maturity, and also the notice by mail of the amount of [376] loss, and. of .the sum due from the assured individually. If this construction were adopted, however, it would not change the situation, in view of the uncontradicted evidence that no information was in fact brought home to the assured; for the postal-bard notice mailed to the post-office address of the deceased was also lacking in one of the statutory requirements therefor, namely, specification of the loss for which the assessment was levied. Where an insurance company has the right to arouse a forfeiture in its own favor upon certain conditions, especially if those conditions be imposed by statute; they must be accurately ánd technically observed. It is not necessary for a court to declare or even ascertain the purpose to be subserved by any of those conditions. It suffices that the law has imposed them. Hence the perhaps technical requirement of the statute that the notice to be mailed shall contain this element of information must be complied with, if the company is to predicate thereon a forfeiture of the policy by reason of nonpayment. The by-law in question warrants forfeiture of the policy only upon failure to pay an assessment after notification. The record discloses affirmatively that there was no information in fact notified to the assured; that the publication, failed to contain any fair notification of the assessment, by omitting information as to its amount; and that the mailed notice could not suffice to supply this defect, for the reason that it also lacked one of the elements required by the statute. Hence we must conclude that there is no proof of notification such as required by the by-law. This view dispenses with the consideration of several other questions argued by counsel. The notice being insufficient in substance, we need not inquire whether the method of giving it satisfied the statute; nor whether, after the death of an assured, brought to the knowledge of the company, a notice by mail addressed to the last post-office address of the deceased is sufficient. Neither need we consider the debated question whether the by-law above referred to is self-executing, or [377] merely gives to tlie insurance company the right to forfeit and cancel tbe policy when the conditions therein specified exist. We therefore have not considered, and do not express any opinion on, these questions. For the defects above stated, we must hold that the conditions upon which this policy might become forfeit have not been shown to exist; hence that it was in full force at the time of the loss, and plaintiff entitled to recover thereon. By the Court. — Judgment affirmed.