*1 (b) give was unenforceable and could no rights
actual notice of claimed fil- Stanley County Register with the
of Deeds because contained a cor-
porate acknowledgment which was face;
defective SDCL 18-5-9
provides for of the format a certifi- corporate acknowledgment.
cate of
Pearey’s acknowledgment does not Pearey
reflect that was authorized to
execute the instrument on behalf of corporation required by as SDCL
18-5-9; furthermore, the acknowl-
edgment was taken and executed by
Pearey, being party who was of beneficiary agree-
the direct
ment, being directly all contrary 18-1-7; parties
SDCL to an instru- generally prohibited
ment are from
taking acknowledgment. Nat’l Rhodes,
Bank Trust v. Commerce 207 Neb.
Thus, judgment I would affirm the so, doing and in note that there Barnett, Thomas C. Jr. of Kemnitz & findings were extensive of fact and conclu- Barnett, Philip, plaintiff appellee. sions of law which are errone- Costello, Porter, Gene R. Bushnell of Hobelsberger, ous. In re Estate Hill, Nelson, Bushnell, Heisterkamp N.W.2d 455 Rap- & City, id for defendant appellant. WOLLMAN, Justice. appeal
This is Property St. Paul & Liability (St. Paul) Company Insurance from a entered the trial court ROSETH, Jerry Philip Livestock d/b/a Jerry in favor Philip d/b/a Live- Express, Appellee, Plaintiff and Express. stock We reverse. 12,1979, On November trailer livestock ST. PAUL PROPERTY AND LIABILI- owned Roseth and leased Richard COMPANY, TY INSURANCE Miller was involved an accident on U.S. Appellant, Defendant and Mission, Highway 83 near South Dakota. Miller transporting was 109 calves for the Inc., Agency, Black Hills Defendant. Idaho, Company buyer 720 Cattle to a O’Neill, Nebraska, when the oc- accident No. 14608. curred. Eleven cattle were killed at Supreme Court of South Dakota. scene the accident and two were Considered on Briefs Feb. 1985. missing. immediately Miller contacted Ro- by telephone Sept. Decided seth and informed him of the
accident. transporting
Miller the calves pursuant agree- Idaho to Nebraska *2 policy. in the pursuant to the exclusion agreement, Under ment with Roseth. Philip against Paul brought for Live- Roseth an action St. haul livestock Miller would trailer, using recovery Roseth’s Express Agency stock Hills for and Black percent of the receiving twenty ($8,865.98) Roseth selling he sustained loss charge. trucking than their market injured calves for less value. day of the accident or On either the after, reported the accident day Roseth court, contended trial to the At (Black Hills). Agency Ro- Hills the Black recovery under two that he was entitled cargo poli- insurance purchased a seth had First, Black Roseth claimed that theories. agent Hills’ through Black cy from St. Paul Brinkman, misrep- negligently agent, Hills policy in- Brinkman David coverage the extent of resented of livestock mortali- against the risk sured cargo policy. coverage specifically excluding ty only, requested full Roseth testified that convey- to walk from “any animal able procured coverage at the time first unloading there- walk after ance or able to Brinkman. Brinkman cargo policy from from.” requested full that Roseth had cov- denied adjuster, Paul St. On November erage, testifying that Roseth wanted cover- Wattleworth, was notified of the
James age previously to which he had similar Agency. Wattle- mishap by the Black Hills agency, at a through a different but better day. Ro- Roseth that same called worth Brinkman the maximum price. obtained that the surviv- informed Wattleworth seth market at that coverage available on the calves, Philip been moved to which had time, coverage, limited as did Ro- which “stiff,” generally “gaunt,” were previous policy, to livestock mortali- seth’s tough shape.” Roseth also pretty and “in ty only. had an all-risk Wattleworth that he told injured calves. policy that cover the would for recov- second claimed basis Roseth’s that he did stated to Roseth Wattleworth ery that St. Paul should be him, copy policy of the before not have denying coverage on the basis of the Paul would assured Roseth that St. but policy in the for exclusion contained provisions perform accordance with Wattleworth had failed to cor- reason that policy. of the policy cover- misconception that the rect his and Roseth then discussed Wattleworth contended injured calves. Roseth ed concerning disposition alternatives mis- had reinforced his that Wattleworth surviving advised calves. Wattleworth conception by instructing him to sell the his duty had a to minimize seth that he immediately, and that he injured calves could parties agreed that this loss. Both assumption that the calves on the St. sold selling accomplished by the calves best be diminish- him for the Paul would reimburse day sale scheduled the next auction injured calves. Roseth ed value of the Accordingly, the at Roseth’s sale barn. he been informed that the testified that had day for sold the next injured calves were covered, he injured calves were not would per hundred approximately $20.00 $22.00 them back to a healthier have nurtured brought the amount weight less than them later to obtain a condition and sold similar, uninjured, calves. The differ- price. better of the calves ence between the net value evidence, At the conclusion of the net value prior to the accident and against dismissed Roseth’s claim trial court $8,865.98. the sale was obtained from ap- Agency. Roseth has not Black Hills policy payment under the Paul issued St. pealed from that decision. calves, included only fourteen for respect to Roseth’s claim With scene, later one that dead at the eleven Paul, court held that St. Paul St. the trial missing. St. died, that were and the two defending estopped from on the injured should be calves denied Paul American Ins. poli- basis of the exclusion contained (Minn. cy. 1979); Chiropractors International Ins. Gonstead, Co. v. 71 Wis.2d
The trial court found that Roseth had See also A.L.R.3d told Wattleworth that he believed he had an all-risk and that decrease
value of the livestock would be covered adopting minority rule, the New policy; thought under his that Wattleworth Jersey Supreme Court held that at the time that Paul did not have an St. [wjhere misrepre- or its agent insurer cargo policy; all-risk that Wattleworth sents, though innocently, even the cover- go nevertheless allowed Roseth to on think- age contract, of an insurance or the ex- ing coverage that the existed because Wat- therefrom, clusions to an insured antagonize not want to tleworth did before contract, or at inception seth; and that Wattleworth told Roseth thought good that he it was a idea to sell the insured reasonably thereupon relies day the cattle the next minimize to the loss. detriment, to his ultimate the insurer is The court held ineq- that would be estopped deny coverage to after a on loss uitable to allow Paul to claim the St. exclu- peril a risk from a actually not covered policy. sion under the by the terms of policy. appeal St. Paul on contends that the trial Harr v. Allstate Insurance 54 N.J. in applying court erred the doctrine of es- 306-307, (1969) (em 255 A.2d toppel coverage provide for a risk not added). phasis See also Darner Motor by policy covered where there was no Underwriters, Sales Universal Ariz. clear and of any evidence mis- (1984) 682 P.2d (adopt 400 n. 10 representation or concealment of material Harr); ing Peninsular Ins. rule of Life by fact Wattleworth. We not need decide Wade, Co. v. 425 So.2d Rather, question. we hold that (Fla.App.1983). equitable estoppel doctrine of appli- is not requirement The con- estopping cable under the facts of this case. duct occur inception “before at the In Farmers Mutual Automobile Ins. is policy” underly- consistent with the Bechard, Co. minority rationale of the rule. The (1963), this court held: minority inequities rule was born out of the company poli- which [A]n which result where an insured relies to his cy generally has written the broad cover- detriment superior on insurer’s knowl- age may by to defend reason edge purchasing policy of insurance exclusionary of an clause not within the consequently deprived oppor- is coverage terms the insured ordered and which he was led to tunity purchase coverage believe was con- the desired tained therein. Harr, supra. elsewhere. holding was followed in State Auto This Ruotsalainen, In both Bechard mobile Casualty Underwriters Ruotsa sought specific coverage insureds lainen, they gave which consideration The Bechard-Ruotsalainen rule is con coverage assurances that provid- trary rule, majority provides policy. ed for Under the facts of the estoppel is bring not available with us, case before Wattleworth at indi- most of a those risks rectly perpetuated misconception held expressly covered its terms or excluded concerning the nature of his cover- See Batesville Ins. Fi & policy. age. We hold that under these facts the Butler, nance Co. v. 248 Ark. remedy estoppel is not available to ex- (1970); Nat’l Fire Ins. v.Co. S.W.2d 709 pand policy. the terms of the Laboratories, Inc., Eastern Shore (Del.1973); Shannon v. Great
A.2d 526
is reversed.
J.,
Bechard,
(emphasis sup-
C.J., MORGAN,
N.W.2d at 90
FOSHEIM,
mine).
the mi-
WUEST,
J.,
plied
South Dakota follows
Acting
concur.
rule;
the trial court in this
nority
so did
J.,
HENDERSON,
dissents.
faulted for it. We
case and should not be
HENDERSON,
(dissenting).
Justice
that deceit or fraud-
recognized Bechard
This case was
respectfully
part
I
dissent.
insurer’s
is not
ulent intent on the
court,
findings of fact
formal
necessary
tried to the
to create
entered, and a
conclusions of law were
reason of an exclu-
insurer who defends
incorporated
Citing
Decision was
sionary
Memorandum
clause.
a Delaware and
judgment.
There is no
said formal
“The evidence to
into
Iowa
relief, however,
for the formal decision
support
granting
reversible error
supported by
Bechard,
convincing.”
erroneous and
should be clear and
precedent in this Court.
at 91. We also held that insur-
*4
fairly
companies
required
are
to act
ance
scope
must be established
of review
Our
dealing
an insured. So let there
when
with
appellate decision. We
to arrive at a sound
concept:
this
The exclu-
be no doubt about
type
in on the
of lawsuit which
must zero
(an
compa-
sionary clause herein
us. When these two basic
confronts
ny contending
only responsible
it is
for
coordinated,
long
we will
thoughts are
be
cargo policy)
dead cattle under a
will not
finding
in
that elusive
way down the road
estop-
up if the
can establish
hold
insured
justice.
lady we call
pel.
estop-
of
This case involves the doctrine
Bechard,
deciding
this
years
Two
after
bring
pel
being
as
available to
within
Hosbrook,
v.
Court handed down Cromwell
policy, a
not
coverage of an insurance
risk
777,
324, 328-29, 134 N.W.2d
780
81 S.D.
expressly
its terms or
excluded
covered
(1965),
required
which also set forth
slipped into the
therefrom. South Dakota
proof
estoppel:
in
of
minority rule column with the advent
general rule
relief is
This is the
where
in
Automo-
our decision
Farmers Mutual
equally ap-
sought by reformation and is
Bechard,
122
bile Ins. Co. v.
S.D.
propriate
the form of the action is
where
N.W.2d
A.L.R.3d
ancillary proceed-
of
one at law or
use
89-90,
Bechard, 122 N.W.2d at
this Court
sought,
ings.
In effect the relief
irre-
recognized
estoppel affects
and
that
action,
the form of the
is to
spective of
rights
parties
changes the
under
pro-
the insurance contract
agreement,
an
whether it is
literal terms of
reform
vide
which did not exist
an insurance
or other written instru-
written.
the contract as
Biegelmeier,
ment. Former Chief Justice
Bechard,
writing for the Court in
cited
in this
Enforcement of oral trusts
state
case, Briney v. Tri-State Mutual
Iowa
convincing”
“clear and
predicated
are
Co., 254 Iowa
Gram,
Grain Dealers Fire Ins.
evidence, Kelly v.
73 S.D.
(1962),
approval,
“clear, satisfactory and
or
N.W.2d
a “null and
clause was held
Liechti,
where
void”
convincing” evidence.
Scott
knowledge.
adjuster’s
He
1;
waived
Krager
N.W.2d
70 S.D.
395,
m oath, coverage; had cattle full uitable play; into if comes adjuster when Roseth told misrepresentation testified that misleading and detri- this, him that he did believe that his mental reliance post-contract, estoppel is all company cargo coverage had envisioned activated, is not dichotomy a or forked rea- pro Roseth.* Roseth he indicated would soning process established; and the right away; ceed to sell cattle brain, complicated organ, that swept adjuster thought good stated he it was with fluctuation and oscillation. idea, a duty that Roseth had to minimize loss; adjuster open testified he, Roseth, let Roseth think had full for the loss of dam
aged cattle because did not want to Roseth;
“antagonize” adjuster’s
St. Paul should be from defend- an exclusion. look To
the policy, and to consider prior facts its
existence, is to reality forsake the
situation which exists here. New Jer-
sey language, employed by majority achieve reversal of a award,
damage is inapposite to the terrible For,
inequity you before us. if mislead a
man into damage, by economic ruination or
representations, concealment of material
matters, or prior detrimental reliance to an contract, eq- doctrine of
*Yet, Williams, ought failed tell Roseth this! who “One when he to be silent.” ought speak silent when will heard N.W.2d at 476. notes reflect that Roseth to inform him was Wiggins, Stephen and Jane WIGGINS cattle; the lost value in the Roseth then Wife, Plaintiffs Husband proceeded to sell the cattle when were Appellees, in very condition, fact, bad truth and encouraged was adjuster. so do Roger and Jean Shew C. A. SHEWMAKE Therefore, statements, adjuster’s Wife, Separate make, De Husband conduct, and concealment misled Roseth. fendants, Party Third Plaintiffs adjuster only had tell “Ro- Appellants. seth, damaged cattle are not covered.” that; But he did not do he knew that No. 14565. covered, Roseth believed he was and went Dakota. of South Supreme Court so far as to encourage immediate sale. 29, 1984. Briefs Nov. He went far as to tell Roseth that it Considered was good idea. Roseth not in the insur- Decided Sept. ance business. reasonably relied adjuster, right which he had a do. As our Court stated Craig Nat’l Farmers Union Automobile & Cas. 349, 354-65, (1956): recognized “Our court right rely an insured to superior on the knowl- edge agent respecting matters.”