Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-29
OREGON SUPREME
COURT DECISIONS
Continued from Page 81

recover an assessment made by the
Mutual Fire Company upon the hold
er of a fire insurance policy, which
was issued on Feb 25, 1911, to de-
fendant, indemnifylng him for the
term of one year against loss Of GER
tain goods by fire.
The complaint alleges that an ad-
vance assessment was made on the
policy in the sum of SIS, payable in
30 days, pursuant to the bylaws Of
the company, no part of which has
been paid; that plaintiff is a mutual
company; and that each person re-
ceiving its policy agrees to be bound
by it's constitution and bylaws. The
answer admits the facts as alleged
in the complaint aud AYERS that by
law No. 8 provides that all assess
ments levied must be paid within 30
days, after notice thereof, and II not
so paid that the policy of insurance
shall be null and void; and that an
action may be instituted for the col
lection of such assessment
The contention Of defendant is that
the policy ipso facto became void, the
assessment not having been paid by
him within the 80 days after notice,
and that plaintiff is entitled to pro
rata of the assessment for the time
the policy was in force and no more,
which amount he rendered to plain
tiff before the commencement Of the
action, and deposited the same in
court with his answer
Plaintiffs contention, as stated in
brief, is "The sole question for the
consideration of the court in this ap-
peal is as to whether the first above
mentioned provision (the forfeiture
clause rendered said policy absolute
ly void or simply voidable at the OPP
tion of the plaintiff" contending that
it is only voidable; that it may waive
the default; and that the bringing of
this action by it constitutes such
waiver. In other words, that the nom
payment Of the assessment does not
render the policy void but voidable at
the option of plaintiff. We cannot
agree with this contention Defen-
dant was in default on March %.
This action was not commenced until
the 10Th of August. BY reason of
such default the policy by its very
terms could not have been collected
prior to August 10th. In case of
loss; and 1t is plain that for five
months, after the policy became in
operative, defendant was without
protection The commencement of
the action did not waive the default.
To constitute a waiver, defendants
insurance must have continued dur
ing the time of the default. Such
waiver, as is here contended, might
as we'll have been made at the expir-
alton of the term Of the policy and
defendant all that time have been
without protection. 1t was not in
plaintiffs power to waive the forfeit
ture or to revive the policy by the
act OF bringing this action, there be-
ing no new agreement or even pay
ment Of the premium.
The terms Of the policy as to for
feiture are very different from those
involved in the cases cited by plain
tiff where the liability Of the COM
pany is suspended during the default
in payment, and may be revived by
subsequent payment In this case
the bylaw makes the policy void for
non-payment and that result is not
dependent upon the action of the
plaintiff but is self-executing.
There is no conflict between the au-
thorities cited by plaintiff and those
cited by defendant, In cases where
the forfeiture by the contract is made
a condition of non-payment, 1t is not
dependent on or affected by the act
of the company; Rood V. Railway
Passenger & Freight Conductors
Nut. Ben, ASSN, 81 Fed So; Lehman
v, Clark, 174 Ill. 279. But In cases
where the non-payment only sus-
pends the liability OF the company
during the default, the policy is re-
vived upon payment; Jollffe " Mutual
Ins Co., 80 Wis. iii; American lns.
Co, v. Klink, IS Mo. rs, The latter
cases are in benefit societies where
the membership and the benefits are
continuing, viz. death or disability
benefits; while the risk In question
here Is upon fire policy for a linz
tied period, and the bylaws Of plain
tifr contain no provision for REIN
stating the policy or making the for
feiture of It optional with the COM
pany The effect OF clause, such
as the one here involved, making the
policy void for default in payment of
n premium, is discussed in note to
" Grand Fraternity, SO
Mont. S25, in % L. R, A, IN, 81 rs,
in which the annotator copcludes
from his review Of the case that "At |