Anderson v. Interstate Business Men's Accident Ass'n ( 1916 )

GATES, J.

On June 13, 1913, plaintiff took from defendant a policy of accident insurance whereby for an accident resulting' in a loss of one 'hand he was to be paid the sum of $1,250. On June 26, 1913, plaintiff took from the Aetna Life Insurance 'Company, and on July 8, 1913, from the Maryland1 Casualty Company, policies whereby for such accidental loss he was to be paid $2,500 by each of said last-named companies. - On August 26, 1913, plaintiff lost his 1-eft hand hy accidental means. Defendant’s policy contained the same paragraph 16 that is set forth in tire opinion in Dustin v. Interstate Business Men’s Accident Association, 37 S. D. 635, 159 N. W. 395. From a judgment against it for $1,250, with ¡Interest and costs, and from an order denying a new trial, the defendant appeals.

[1,2] By reason of said paragraph 16 of the policy defendant asserts its liability to be only $250, or one-fifth of the total insurance, that .being its proportion of the total insurance carried, because of the fact 'that the insured! did not notify the defendant of such additional insurance, and the said amount of $250 has been paid to plaintiff without prejudice. So far as! the matters presented in this case are similar to those presented in the Dustin case, the decision in that case is controlling and is adhered to, but this case presents a difference in one respect. Finding's IV and V of the trial court in this case are as follows.:

“IV. It appears from the evidence and is admitted by the defendant that at the time that plaintiff made his application he particularly 'stated to agent of defendant that he intended taking those two. policies1 from the Maryland Casualty and from the Aetna, as their agents were customersi of his and had been applying to him 'to take out ‘the policies, and that he was- going to' give them the chance, and that if i't interfered as to' his policy he would not make application to- this defendant, and was informed by such agent that it would make no difference, to- go ahead and sign up, and the company would -issue policy under those -conditions.

“V. And I further find, as a matter of fact, under these conditions, tlie defendant had full knowledge of all the facts and issued the polic)'- -under the condition and waived any right to subsequent notice of any kind.”

Such findings went far beyond! the evidence. The only evidence upon, which said findings could be .predicated w'as this:

“It is further stipulated that if the plaintiff were present he would testify that he had given no notice of such policies to the defendant company, except that at the time he made application for Exhibit i he stated1 to the •soliciting' agent, C. F. Hopkins, who took his application therefor, ‘that he had promised to1 and would taire out accident policies with the Narregiang Investment Company, who was the soliciting agent and sold him policy Exhibit 3 [policy issued by Maryland Casualty Company], and with George Mabbott, who was the soliciting agent, and who soil'd him Exhibit 2 [policy issued by Aetna Life Insurance ’Company], as they were customers of his and had been- soliciting him for insurance, and he had promised and intended to- take out policies.”

We are of the opinion- that this evidence did not show a waiver of the requirements of paragraph 16 of the policy. The most that oan he said of it is that it was notice to 'defendant that plaintiff intended at some future time ito take out additional insurance in some indefinite amount.

[3] A condition requiring notice of additional insurance Js not complied with by notice of a mere intention to take out other insurance in the future. Cooley’s Briefs on Ins. p. 1841; Kimball v. Howard Fire Ins. Co., 8 Gray (Mass.) 33; Eagle Fire Co. v. Globe Loan & Trust Co., 44 Neb. 380, 62 N. W. 895; Home Fire Ins. Co. v. Wood, 50 Neb. 381, 69 N. W. 941; Healy v. Imperial Fire Ins. Co., 5 Nev. 268; New Orleans Ins. Ass’n v. Griffin, 66 Tex. 232, 18 S. W. 505; Liverpool, London & Globe Ins. Co. v. Sorsby, 60 Miss. 302.

The judgment and order appealed from are reversed.