159 N.W. 395 | S.D. | 1916
This action is brought for the recovery of $2,500 claimed to be due on an accident insurance policy issued by defendant to one J. F. Dustin, and'in which this plaintiff is named as beneficiary. Said policy was issued on the 10th day of July, 1913, pursuant to a written application theretofore made by ■said Dustin. But two paragraphs, C and 16 of said policy, are of importance on this appeal. Said paragraphs read as folows :
“C. If, as a result of such injury, independent of all other causes, intervening, contributing or concerning, the death of the member shall occur within ninety days from the date thereof, the association shall pay the sum of five thousand dollars ($5,000.00), which shall be in full and complete satisfaction of every claim against it, including any claim for disability.”
“16. If the member shall carry any other accident insurance, of which' he has not notified this association in writing at least .fifteen days prior to the date of any accident on account of which any claim is made hereunder, -this association shall only be liable .for such proportionate amount of the benefits or indemnity herein promised as such benefits and indemnity bear to the total amount of benefits or indemnity promised in all accident policies or certificates, and for the return of such part of the last assessment paid by the member as shall exceed the pro rata of the premium for benefits paid.”
On the 16th day of September, 1913, said Dustin made application to the Chicago Business Men’s Association, an accident insurance company of Chicago, Ill., for additional accident insurance. This application was accepted, and on the 21st day of that month a policy was issued by said company to- said Dustin, by the term of which it was agreed that, in case of the death of the said Dustin from a bodily injury caused by accidental means, the said company would pay to the beneficiary named in said policy the sum of $5,000. The said Dustin did not give to defendant the notice provided for in paragraph 16 above quoted, and on the 27th day of September, 1913, within six days after the issuance of the policy by the Chicago Business Men’s Association, the said Dustin lost his life as the result of an automobile accident. Plaintiff made the proper proof of death, and demanded payment of $5,000 under the provisions of paragraph C of the policy, issued by defendant. Defendant refused to pay the full amount of $5,000, claiming that because of the issuance of the said second policy of accident insurance, .and the failure on the part of the said decedent to give the notice provided for in paragraph 16 above quoted, it was liable for only $2,500. This amount defendant paid to plaintiff without prejudice to 'her right to prosecute this action for the remaining $2,500. The case was tried to the court upon an agreed statement of facts. Findings and judgment were in favor of plaintiff, and- from such judgment and from- an order overruling its motion for a new trial, defendant appeals.
It is contended by respondent that appellant’s statement of the facts in the case should be disregarded by the court, for the reason that the same does not contain a sufficient amount of the material evidence to properly present the appeal. The portion of the evidence that respondent claims is material, but which appellant failed to print ,is the application made to defendant by the decedent for the issuance of the policy involved. Appellant’s brief contains a statement that all the material evidence is therein set forth. . „
“If the subsequent stipulation of the contract should restrict what was distinctly stated, an-d constitutes a principal inducement*641 to the contract, it will ibe of no effect.” Story on Cont. art. Sio.
And, quoting- from Williams v. Hathaway, 6 Ch. Div. 544:
“ ‘The distinction/ says Jessel, M. R., ‘has always been taken between a proviso which is repugnant to the covenant, and therefore void, and a proviso! which can be incorporated into the covenant and be 'consistent with it.’ ”
Can the limitation under consideration in -this case be incorporated into and he consistent with the main covenants? We think it can. Had the main covenant in the policy in question read:
“In consideration of the stipulated premium, appellant agrees, subject only to the terms, conditions and limitations' contained herein and the application herein set out, h> pay the beneficiary of the said Dustin, in case of his death from bodily injuries while this policy is in force, the sum of $5,000: Provided, that if said Dustin shall carry any other accident insurance of which he has not notified this association at least fifteen days prior to the date of any accident on account of which any claim is made hereunder, this association shall pay only such ¡proportionate amount of said sum of $5,000 as said sum bears to the total amount of all accident insurance policies carried by the decedent.”
—it would not be subject to the criticism made by respondent. The condition in the proviso is perfectly consistent with the main covenant in the contract. It merely provides that certain 'conduct or acts on the part of the insured will reduce the liability of the insurer. The proviso is not contrary to any law, nor is it immoral and, unless it is contrary to public policy, it must be given effect.
. As above stated, the purpose of the proviso contained in paragraph 16 is to enable the insurer to guard against and prevent excessive accident insurance. Under the -terms of the provision, the issuance of additional insurance without the giving of the notice therein provided for automatically reduces the amount of the insurance. If the notice is given, the liability is not affected by the additional insurance unless the company chooses to exercise its option- to return the unearned premium and cancel the policy. The only reason that is suggested why a policy shall be canceled under these circumstances is the danger of liability on account of
The case involves no question of public policy. It is purely a question of the right to enter into the agreement contained in the policy. The decedent failed to give the notice provided for in the policy, and defendant’s liability was reduced as therein provided.
The judgment and order appealed from are reversed.