170 N.W. 575 | S.D. | 1919
Defendant insured plaintiff’s 'crops against damage by 'hail. The policy covered' 431 a-cres of wheat, oats, (barley, and' flax; the same being insured in the s-uto of not to exceed $10 per acre, or $4,310. Suit was brought on this policy,
Appellant contends that respondent was not entitled to recover at all, because of his' failure to furnish the proof of loss required by the policy; that respondent was not entitled to recover in excess of $381 for damage to wheat, oats, and barley, because of an alleged adjustment of such damages; and that respondent was not entitled to recover the amount found by the jury because such amount is excessive under the evidence and law.
“I would like Messrs. Buck & Skarlarken to act in my stead in adjusting the loss. * * *”
Skarlarken undertook to make proof of loss and to adjust same. Purporting to act as agent for respondent, he executed proof of loss, showing loss on wheat, oats, and barley in sum total of $381. This “proof of loss” was approved by the adjuster representing appellant, and the appellant afterwards tendered $381 in settlement for loss on wheat, oats, and barley. Respondent 'contends that by his letter he constituted Buck & Skarlarken his joint agents, and that Skarlarken, acting alone, was without power to enter into any agreement for adjustment of loss. It is perfectly clear that the words we have quoted from the letter would, if standing alone, create a j oint agency only, under the, well-established rule that, where one employs two or more to represent him in a matter of business, the presumption is that such employees are joint agents; but appellant contends that the remainder of the letter, together with other evidence introduced, was sufficient to warrant the jury in finding the agency of Buck & 'Skarlarken to be both joint and several. At respondent’s request, the court, in addition to instructions given on its own motion, gave further and quite extensive instructions, a part of which was as follows:
“You are instructed that, when a principal employs more than one agent to represent him in the same matter of business, they
This was followed by an instruction as to the power of one joint agent to bind his principal, and as to the effect of ratification of an unauthorized act of an agent. The appellant entered a general exception to all of the requested instructions, setting the same out in full, but in no manner pointing out any particular part excepted to. It now complains of only that part which we have quoted. The exception taken was ineffective. It was appellant’s duty to call the trial court’s attention to the particular part of these instructions it considered erroneous. As early as the case of Kennedy v. Falde, 4 Dak. 319, 29 N. W. 667, it was held:
“An objection or exception should state the point with accurate clearness, so that there can be no question in the appellate court relative to what the question is. Exceptions to the charge of a court should point out the specific portions of the charge excepted to. * * * The office of an exception is to point out some specific error in law, and the counsel should, by his exception, lay his finger upon the precise * * * error in the charge. * * * ”
“But if you find he appointed both Mr. Buck and Mr. Skarlarlcen, and only one acted, then the plaintiff would not be bound by the acts of that one. * * *”
'Certainly, not having excepted to this last instruction, it would not be presumed that appellant took any exception to that part of the “requested instruction” which We have quoted; moreover, the trial court would in no manner be advised by the exception that the sole and only ground of exception which was in appellant’s mind was because the court did not, instead of saying, “they are joint agents,” say, “they are presumed to be joint agents” — the thing now complained of. The only assignment of error, and therefore, as we must presume, the only specification1 of error, directed to the instruction above considered, merely claimed error in the whole instruction, quoting same, and in no manner pointing out wherein same was erroneous. Such an assignment or sped
“We are holding a completed proof made up by our first representative. This proof is signed, and we are now interested in knowing conditions in connection. Our adjusters are now busily engaged in connection with corn losses, and * * * it will be necessary to dispose of them before again taking up your loss.”
“All defects in a notice of loss, or in preliminary proof thereof, -which the insured might remedy and which the insurer omits to specify to him, without unnecessary delay, as grounds of objection, are waived.
“Delay in the presentation to an insurer of notice or proof of loss is waived, if caused bjr any act of his, or if he omits to make objection promptly and specifically upon that ground.”
These sections were as much a part of the policy of insurance as though written therein, and are controlling wherein their provisions conflict with those actually contained in the policy. Epiphany R. C. Church v. German Ins. Co., 16 S. D. 17, 91 N. W. 332. As said in Teasdale v. City of New York Ins. Co., 163 Iowa, 596, 145 N. W. 284, Ann. Cas. 1916A, 591, in speaking of a defense based on claim that no proof of loss was -made:
“It is a defense which does not appeal to the favor -of courts, and a forfeiture so claimed will not be enforced, if there be any reasonable ground on which to find that the condition has been ■waived.”
“The company having become possessed of all facts necessary to a determination of the question of its liability, and having ex
In the case of Ring v. Phœnix Assur. Co., 164 Pad 303, 100 Kan. 341, a suit to recover upon a hail insurance policy and where, as here, it appeared there had been a tender by the insurer, the court said:
“In this state of affairs the defendant is in no condition to invoke the doctrine that the provisions of the policy could not be waived; for it had in fact and in law waived them.”
Appellant did not insure against loss by rust, but it did1 insure against loss by hail; and if rust or increased rust was the result of the hail, then any loss from such rust or increased rust, just like loss from the lodging of grain by hail, is a loss directly traceable to the hail. Thus, in the case of Schwindermann v. Great Eastern Casualty Co., 165 N. W. 982, a policy covering personal injuries had a provision to the effect that it should not cover loss from injuries resulting from- hernia- — it was held that this provision had no application where the insured-received an injury from which 'hernia resulted. In like manner a policy providing that the insurer shall not be liable for that portion of a loss that flows from- other causes than hail has no application where loss or increased loss comes from a cause brought about by hail.
There were numerous exceptions to rulings upon admission of evidence, which we deem it unnecessary to discuss. The most of them are ruled by the matters we have discussed, and it is clear to us that no prejudicial error is shown by the record, and that, on the other hand, the record discloses that the verdict and judgment are eminently just.
The judgment and order appealed! from are affirmed.