137 N.W. 46 | S.D. | 1912
This cause is before us upon an appeal from the order of the circuit court sustaining a demurrer to plaintiff’s complaint. The action is one brought for the purpose of recovering under a policy of fire insurance, and the facts are set forth in said complaint as follows: One S., .being the owner of a stock of goods, did on September. 14, 1909, insure the same in defendanant company, the policy of insurance being the standard form provided by the laws of this state. Under the policy, the property was insured against loss from fire or lightning until September 14, 1910. On June 6, 1910, the stock of goods was totally destroyed, resulting in a loss exceeding the amount of said policy. Prior to said fire, and on May 31, 1910,. the plaintiff was appointed trustee in bankruptcy of said S. by the federal-District Court under proceedings in involuntary bankruptcy. Prior to the 'bringing of this _ action, but whether before or after the destruction of the goods by fire is not shown, plaintiff filed his bond, and qualified as such trustee in bankruptcy. Plaintiff gave notice of loss, and did all things required under such policy as conditions precedent to the recovery of said insurance. The policy contained a provision "that it should be rendered void, “if any change other than by the death of the insured take place in the
Appellant, in his brief filed in this court, has -made a general attack upon the constitutionality of our standard policy law, but has failed to call to our attention any particular provisions therein which render the same unconstitutional. We are at a loss to understand appellant’s position, a>s we cannot see wherein it would avail the appellant anything if said statute were held to be unconstitutional. If the appellant were claiming under and by virtue of some provision in such policy, which provision conflicted with ■the said law, and which provision could be held to be in force only by holding such law to be invalid, the situation would be entirely different. But, if such law is invalid, yet the policy before us would be the contract of the parties thereto, and the provisions of such contract would be binding upon the parties, providing they were not of a nature as to render them invalid under some established principle of law or equity. The effect of a clause, such as the one quoted above, has been frequently passed upon by the courts of our sister states; such clause being one quite common in the policies used throughout the Union, and one which has been construed in several cases wherein the insured had been adjudged a bankrupt, and, as in this case, a trustee in bankruptcy was seeking to .recover upon the policy. The authorities are collated in the notes following the case of Gordon v. Mechanicsville, etc., Insurance Co., 14 Ann. Cas. 889. A review of these decisions discloses that, according to the apparent weight of authority, if in the 'bankruptcy proceedings a receiver has been appointed but no trustee has been appointed at the time of the fire, the policy remains in full force; and, even where there has been a trustee appointed, but he has not as yet qualified at the time of the fire, the policy still remains in force. It will be noted that, under the facts in those cases, the title to the property had not at the time of fire passed out of the insured, as such title
The order of the trial court is affirmed.