160 N.W. 522 | S.D. | 1916
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.
“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.”
“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.
The judgment and order appealed from are reversed.