199 N.W. 595 | S.D. | 1924
Plaintiff recovered a judgment against defendant in the sum of $1,250 under an accident policy. Defendant appeals from the judgment and order denying new trial.
The policy was written under the company’s classification AA or “Extra Preferred” and provided an indemnity of $1,2501 for the loss of • one foot. Another more hazardous classification C applied- to farmers, and under it the indemnity was $250 for the loss of one foot. Another more hazardous classification was B, which applied to an agricultural implement agent, -dealer, or merchant handling machinery. We are unable to find- in the record the amount of indemnity under this classification. It was and is the contention of appellant that respondent was injured
The application for insurance signed • by respondent states, among other things:
“6 My occupation is postmaster; also agricultural imp. dealer (If merchant or clerk state line of business).
“7. The duties of my occupation are fully described as follows : Only as above. Not handling machinery.
“8. My occupation does not include mechanical construction or any work with machinery, implements or automobiles except as follows: Drives own car; otherwise, no exception.”
The policy of insured also provided:
“If the assured is injured after having changed his occupation to one classified by the association as more hazardous than that stated in his application, or while doing any.act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreation or while engaged in an occupation designated in his application wherein he has failed to fully describe all of the duties in connection therewith, the association will pay such indemnities as are provided by its classification schedule in force at the time of the issuance of this certificate or that may be subsequently adopted.”
As a matter of fact respondent owned, resided upon and superintended a farm adjoining the town, but his principal business was as stated in the application. It was also the custom of agricultural implement dealers similarly situated to order repairs, place them on the implements, and test them. The accident occurred while respondent was testing a corn binder under his duties as agricultural implement dealer “handling machinery,” and was not in pursuance of his work as a farmer.
Appellant’s classification manual, improperly rejected from the evidence, contained this paragraph: ,
“Applicants whose occupation is such as to occasionally require duties of a more hazardous nature than those of their regular occupation may be written in the classification of their regular occupation with a rider in which the applicants agree to accept the indemnities payable in the policies issued to’ those who are regularly engaged in performing the more hazardous duties of his occupation, if insured while doing such duties, example—*533 hardware merchant, office and counter duties only classified as “AA”; hardware merchant delivering is classified 'C. If the merchant did only a small amount of delivering he would be written in AA classification with rider reducing the indemnity payable to class C if injured while delivering.”
If respondent’s application for insurance had' accurately stated the facts, he would have been insured under class B, or there should have been a rider attached to- his poilcy which would) have entitled him only to the indemnity of class C if he was injured while farming and to the indemnity of class B if he was injured while handling agricultural implements.
We are of the opinion that the trial court did not err in denying appellant’s motion that a verdict of only $250 be directed against it, but we are of the opinion that under the undisputed facts respondent was not entitled to- a verdict of $1,250.
If the record before us disclosed the indemnity respondent would have been entitled to under class B, we would modify and affirm the judgment in acordancé therewith, but since the record does not disclose such ' indemnity we must reverse the judgment and order denying new trial and remand the cause for new trial. No costs will be taxed in this cour-t.
Note.-—Reported in 199 N. W. 595. See, Headnote (1), American Key-Numbered Digest, Insurance, Key-No. 648(1), Accident insurance, 1 C. J. Sec. 315 (1925 Anno.); (2) Insurance, Key-No. 531, Accident insurance, 1 C. J. See. 346.