Ehrke v. North American Life & Casualty Co.

SDC 31.1701 provides: "No policy of insurance against loss or damage from the sickness or the bodily injury or death of the insured by accident shall be issued or delivered to any person in this state unless it conforms to the following: * * * (5) A brief description of the policy must be printed on its first page and also on its filing back in type of which the face shall not be smaller than fourteen point; * * *"

In conformity with the above statutory requirement there was printed in boldfaced type upon the policy here involved upon its filing back and also on the first page the following: "This policy provides indemnity for loss due to hospital residence and surgical operation expense, caused by accident, bodily injuries or caused by sickness all to the extent herein limited and provided."

In view of the fact that the law, SDC 31.1512, requires that the form of this insurance policy be filed with and approved by the Commissioner of Insurance, it should not be held, in my opinion, that this description of the policy which the law requires constitutes merely a construction which the company has placed upon the terms of the policy. Even conceding that this description does not become a part of the policy, nevertheless, it is mandatory under our law and should not be ignored when a court seeks to determine the object and intent of the parties in entering into the insurance contract. Without mentioning any such statutory requirement the Indiana court held in the case of Hessler v. Federal Casualty Co., 190 Ind. 68, 129 N.E. 325, 327, 14 A.L.R. 1329: "In construing a policy of accident insurance, words printed on the back of the policy purporting to sum up what is embraced by it, constitute a part of the contract and are to be taken into consideration in its construction."

The policy provides for "loss necessitated by sickness * * * subject to the provisions and exceptions hereinafter contained." The provisions contained in the policy relate only to surgical and hospital expenses. When the parties made the loss due to sickness subject to provisions of the policy which relate only to surgical and hospital expense, I cannot conclude that it was intended the policy should cover without limitation all loss due to sickness. Reading the entire contract, together with this description which the law requires, it seems to me apparent that the purpose and intent of the parties was a contract insuring against loss due to hospital rsidence and surgical operation, and when the term "loss" was used with reference to sickness in the insuring clause, it was used with this limited meaning. "Contracts of insurance, like other contracts, must receive a practical, reasonable, and fair interpretation consonant with the apparent object and intent of the parties." 29 Am. Jur., Insurance., § 158. To hold that the parties here intended a contract insuring against any and all loss, whether direct or indirect, due to sickness, seems to me to be neither a practical, fair nor reasonable interpretation of this contract. I, therefore, respectfully dissent.