Lindseth v. National F. Ins. Co.

Two actions on insurance policies covering an automobile were by stipulation consolidated and tried together. Separate judgments were entered in the trial court against the two defendants in favor of the plaintiff. Both defendants have appealed and the appeals are submitted on one brief. The cases were tried to the court without a jury. It is the contention of the defendants and appellants that the provisions in each policy stipulating against additional insurance are fatal to the plaintiff's recovery. Plaintiff and respondent, among other contentions, urges that, even though the stipulations in the policies against additional insurance would have the effect of voiding the policy in each case, the defendants have waived the benefit of the stipulation.

There is no evidence of any fraud. The plaintiff never went to school in this country and reads English very poorly. There is nothing in the application which he signed, nor in the application which the insurance agent filled out, containing any information with reference to the existence of other insurance, nor does it appear that any such inquiry was made by the agent. The policy of the defendant St. Paul Fire Marine Insurance Company was first issued, and there is evidence that at the time it was applied for the local agent suggested to the plaintiff that his company would not insure the car for more than $300 and that he could apply for additional insurance in another company if he desired additional insurance. There is also evidence that when the plaintiff applied for the second policy in the National Fire Insurance Company he informed the agent that he had other insurance to the extent of $300. The stipulation is contained in each case in a printed portion of the policy which was not read by the plaintiff, and it is elementary that such a stipulation can be waived. While the trial judge based his decision on other grounds, he expressed the view in the findings of fact that the evidence on the question of waiver preponderated in favor of plaintiff's version, and an examination and consideration of the evidence leads us to the conclusion that this view of the trial court was correct.

The judgments appealed from are affirmed.

BIRDZELL, Ch. J., and NUESSLE, CHRISTIANSON, BURKE, and BURR, JJ., concur.