210 N.W. 744 | S.D. | 1926
This action was brought to recover damages, caused by a tornado, on an insurance policy issued by the defendant company. The policy was issued on the 5th day oí April, 1922, and was for a term oí five years. The premium amounted to $195. Oí this amount, a sufficient sum was paid at the time the policy was issued to reduce the balance due to $147.73- This amount was evidenced by two promissory notes executed by plaintiff and delivered to defndant. One1 of these notes was for $47.73 and was payable on the 1st day of November, 1922. A payment of $10 was indorsed on this note on the nth day of May, 1922. The other note was for $100 and was payable on the 1st day of March, 1923. Each of these notes contained the following provision:
•' “It is hereby agreed that the company shall not be liable for any loss or damage that may occur to the property insured, while this note, or any part thereof, shall be overdue and unpaid.”
“You are hereby notified if you fail to pay the same within 30 days, the policy will be suspended, inoperative- and of no force or effect so- long thereafter as the note, or any part thereof, remains overdue and unpaid, and the same will be so entered upon the books- of the company, but will be reinstated upon the payment of the premium due.”
The notice then set out the various provisions enumerated in said section 9191, and then winds up with the following clause:
“In case of your election to terminate the above-mentioned insurance at the expiration of said 30 days, the amount which will be due you from- this company on account of previous payments upon said premium will be the sum of $16.60.”
Prior to or about the time of forwarding the above notice, defendant sent the said notes to its local agent at Wessington Springs, S. D., for collection, and, fro-m that time until about the 14th day of June, 1924, vigorous and persistent efforts were made by defendant, through both the said Omaha agency and the said local agent at Wessington Springs, to- collect said notes. But defendant never -canceled the said policy, no-r notified plaintiff that the policy had been canceled, nor did it return to plaintiff the portion of the money that plaintiff had paid on the premium, but that had not 'been earned on the ist of November, 1922. On the other hand, that portion of the notice last above quoted gave plaintiff the option of terminating the insurance an-d claiming a return of the said $16.60.
On the 14th day of June, 1924, the insured property was damaged by a tornado. Plaintiff filed a claim- for his' lo-ss with the local agent at Wessington Springs.' Defendant denied any' liability on the policy, and this on'the sole ground that the said note due on the ist day of November, Í922, had no-t been paid.
The defendant interposed two defenses to the collection of the policy, first that the policy had lapsed for nonpayment of the premium; and, second, that plaintiff failed to furnish the proof of loss provided for by the policy. The policy involved is a standard form fire insurance policy, bearing a tornado' or -wind-storm rider.
It is conceded that the policy went into effect when it was issued. This beinig true, it remained in force until it was canceled, or suspended by some means recognized by law, or lapsed by its own limitation, of time. It is the contention of appellant that liability on the policy was suspended on the 1st day of November, 1922, by the mailing of the notice that was sent out from Omaha on the 1st day of October. But this notice did not have this effect, first, because there is no> provision in the policy for forfeiting or suspending the policy for nonpayment of a promissory note. There is such: a provision in the application and in the note itself, but neither the application, nor the1 note, nor copies thereof were attached to the policy, and the policy contains the following provision:
“This policy is made and accepted subject to the foregoing stipulations and conditions printed on the back thereof, which are hereby specifically referred to and made a part of this policy, together with such other provisions, agreements, or conditions, as may be indorsed hereon or added hereto'.”
It was evidently the intent of the parties, as it is the intent of the law, as embodied in the standard form policy, to put the entire contract into one instrument that shall be in the •hands of the insured. This was so declared by this court in the Lengbehn Case, 41 S. D. 581, 171 N. W. 820, and followed in. the Ritter Cases, 48 S. D. 231, 203 N. W. 503, and Id., 48 S. D. 571, 205 N. W. 382.
But there is a second reason why the purported notice mailed out of Omaha on the 1st day of October was not effective, arid why section 9.191, Rev. Code 1919', is not applicable to the facts in this case, as they existed on the 1st day of November, 1922. Before a policy can be forfeited or suspended under that section, there must be a default in the payment of premium. In
Our attention is called to the foliowing language found in the policy:
“If application, survey, plan, or description of property be referred to in this policy, it shall be a part of this contract and a warranty by the insured.”
And it is contended' by appellant that this clause incorporates the application into- the policy and that the insured is bound by anything that may -be found in the application, but this is wholly inconsistent with that other clause found in the standard policy, which provides that the contract consists of the policy, “together with such other provisions, agreements, or conditions, as may be indorsed hereon or added hereto.”
Both of these provisions cannot stand, and, since the former is against the interests of the insured and the latter favorable to him, the latter must prevail. 26 C. J. 72; Kennedy v. Ins. Co., 21 S. D. 145, 110 N. W. 116; Bolte et al. v. Fire Ins. Ass’n, 23 S. D. 240, 121 N. W. 773; McNamara v. Ins. Co., 1 S. D. 342, 47 N. W. 288; Edge v. St P. F. & M. Ins. Co., 20 E. D. 190, 105 N. W. 281.
Other matter discussed by counsel are not material to a disposition of the case and need not be considered.
The judgment and order appealed from are affirmed.