Keenan v. Dubuque Mutual Fire Insurance

1. Question not raised below. The Supreme Court will not review questions not presented to the court below. 2. Waiver. The assessment and collection of a portion of a premium note, by a mutual insurance company, after it has been advised of a violation of the conditions of the policy, operates as a waiver of any forfeiture by reason of such violation: following Keenan v. The Missouri State Mutual Inswramce Company, 12 Iowa, 126. 3. Notice to an insurance company. The knowledge an officer of an insurance company acquires by rumor, or by information, in his individual capacity, is not constructive notice to such company.

Appeal from, Dubuque City Court. The defendant, upon the 6th day of December, 1856, issued a policy of insurance to the Odd Fellows’Hall Association, upon a building owned by them, in the City of Dubuque. The policy was to run for six years. The building was destroyed by fire in May, 1859. The plain? tiff having obtained judgment against said association, notice of garnishment was duly served upon the defendants, and, an issue being made upon the answer of the garnishee, there was a'trial by jury, and verdict for the plaintiff. Defendant appeals. 1. No notice of loss was given forthwith, as required by the laws of the Company. The loss occurred May 27th, and the notice was not given until June 8th. This, certainly, is not forthwith. Angelí on Fire Ins., 293; Inman v. Western Fire Insurance Company, Wend. Rep., 452; Fdwards v. Baltimore Fire Insurance Company, 3 Gill. (Md.), Rep., 176. 2. The policy and application form but one contract. The condition, that “ no stage scenery to be introduced and used in the building,” is a warranty that no such scenery should be used during the continuance of the policy, and the introduction of such machinery was a breach of the warranty, and rendered the policy void. Holmes et al. v. Charles-town Mutual Insurance Company, 10 Met., 214; Houghton et al. v. The Manufacturers' Mutual Fire Insurance Company, 8 Met., 114. 3. A policy once rendered void by breach of its conditions by the assured, cannot be revived, unless upon a new consideration, and upon such terms as would make a new contract. Smith v. The Saratoga County Mutual Insurance Company, B Hill, 508 and cases therein cited; Neeley ,v. The Onondaga County Mutual Insurance Company, 7 Hill, 49. • 4. If the policy of insurance in this company becomes void, it does not release the assured from his liability on his premium note, and the collection of assessments on such premium note, even when the company knew of the breach which rendered the same void, would not be a rewaiver of such breach, or operate to revive the policy. Bangs v. Skid-more, 24 Barb. (N. Y.), 29. 5. The company had no knowledge of the violations of the conditions of the policy, by using “ stage scenery,” at the time the assessments were made. The only persons who had such knowledge, and were officers of the insurance company, were directors of the Odd Fellows’ Hall Association. It is not enough that some of the directors of the insurance company should have had such knowledge; it must be known by the directors as a body — as a Board. No direct knowledge is brought home to any of the officers except those interested as officers of the assured. National Bank v. Norton, 1 Hill, 578; Farmers' & Citizens' Bank v. Payne, 25 Conn., 444; Bank of the United States v. Davis et al., 2 Hill, 451. . 1. The first point made in defendant’s brief is, that notice of the loss was not given forthwith, as provided by the bylaws of the company. In reply, we say, this question was not raised in, nor passed upon by, the court below, therefore cannot be reviewed by this court. The answer of the garnishee sets forth, specifically, the reasons why the insurance company refused to pay the loss, but makes no mention of this objection, and in all the instructions asked, given or refused, no notice whatever is taken of this point Lorieux y. Keller, 5 Iowa, 196 ; Delany y. Beade, 4 Id., 292; Jungle v. Jungle, 5 Id., 541; Bowan et al. v. Lamb, 4 Gr. Greene, 368 ; Miller y. Chittenden et al., 2 Iowa, 315, 360 ; Houston, Garnishee, y. Wolcott & Go., Id., 86; Berry y Gmvel, 11 Id., 135. “Forthwith.” means within a reasonable time, and what is a reasonable time is a question for the jury, under all the circumstances. Columbia Insurance Company y Lawrence, 10 Peters, 507; Edwards y. Baltimore Fire Insurance Company, 3 Gill (Md.), 176; Kingsley y. New England Fire Insurance Company, 8 Cush., 393 ; Sexton v. Montgomery County Mutual Insurance Company, 9 Barb., 191. 2. The policy and premium note are dependent contracts. Where the policy becomes void, so that the insurance company could not be compelled to pay a loss, designed to be covered by it, the premium note becomes likewise void, and the company can no longer legally make assessments upon it for losses sustained after the policy becomes void. Keenan y. The Missouri State Mutual Insurance Company, 12Towa, 126 ; Indiana Mutual Fire Insurance Company v. Conner, 5 Port. (Ind.), 170, decided in 1854, overruling 2 Carter, 645 ; Wilson v. Trumbull Mutual Insurance Company, •19 Penn. State, 372; Burbank, Admr., v. Bockingham Mutual Fire Insurance Company, 4 Foster, 550, 560 ; Frosty. The Saratoga Mutual Insurance Company, 5 Denio, 154; Lynn y. Burgoyne, 13 B. Monr., 400; Viall v. Genesee Mutual Insurance Company, 19 Barb., 440. 3. Where a Mutual Insurance Company, with full knowledge of an alteration in the risk, .which would render the policy void, continues to make and collect assessments upon the premium note of the holder of the policy, the jury may infer therefrom a waiver of the forfeiture. Keenan y..The Missouri State Mutual Insurance Company, 12 Iowa, 126; Frost v. The Saratoga Mutual Insurance Company, 5 Denio, 154; Viall v. The Genesee Mutual Insurance Company, 19 Barb., 440; Insurance Company v. Stockblower, 26 Penn. S. R., 199; Allen y. Vermont Mutual Fire Insurance Company, 12 Verm., 366; Leathers v. Farmers' Mutual Insurance Company, 4 Foster, 259; Coodall v. New England Fire Insurance Company, 5 Foster, 169, 190, 191; Coit v. The National Protective Insurance Company, 25 Barb., 189; Puse y. The Mutual Benefit Fire Insurance Company, 20 Barb., 556; Tuttle y. Robinson, 33 N. EL, 104, 114. 4. It will be seen that the President, Secretary and two of the directors had knowledge of the fact, which, it is alleged, would invalidate the policy. This knowledge was not obtained by “ mere rumor, or talk upon the street corners,” but by the evidence of their own senses, and that three of the four had their attention expressly called to the effect of the change in the use of the building upon the policy of insurance. The cases are not agreed upon the question under discussion, but we confidently assert that no case can be found where such notice or knowledge, as has been shown in this case, was held insufficient to bind the corporation. North River Bank v. Aymar, 3 Hill, 262, 274, 275 ; Porter et ad. v. Bank of Rutland et ad., 19 Verm., 411, 425 ; Fulton Bank v. New York & Sharon Canal Bank, 4 Paige, 126, 136; Romayn v. Mich. Fire Insurance Company, 1 Green (N. J.), 110; The Bank of St. Mary's v. Munford & Tyson, 6 Georgia, 44, 49. Proof that the corporation, sought to be charged with notice, took a newspaper in which the notice was published, is a fact from which the jury are authorized to infer actual notice to a corporation. Green v. Merchants' Insurance Company, 10 Pick., 402, 406; Bank of South Carolina v. Humphreys, 1 McCord, 388 ; Martin v. Walton, Id., 16; Elton v. Larkins, 5 Car. & P., 86 ; Freire et ad. v. Woodhouse, 1 Holt, 572; The New Hope and Delaware Bridge Company v. The Phoenix Bank, 3 Com., 156; Am. Law Reg., Feb., 1862.