Bentz v. Cimarron Ins. Co.

• Decision Date: 27 March 1962
• Docket Number: No. 9942,9942
• Citation: 79 S.D. 510,114 N.W.2d 96
• Parties: Carlos W. BENTZ, Plaintiff and Respondent, v. CIMARRON INSURANCE CO., Inc., a Corporation, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 96

114 N.W.2d 96

79 S.D. 510

Carlos W. BENTZ, Plaintiff and Respondent, v. CIMARRON INSURANCE CO., Inc., a Corporation, Defendant and Appellant.

No. 9942.

Supreme Court of South Dakota.

March 27, 1962.

Francis J. Parker and D. O. Dillavou, Deadwood, for defendant and appellant.

Thomas G. Wall, Sturgis, E. W. Christol, Rapid City, for plaintiff and respondent.

HANSON, Judge.

This is an action to recover damages for loss of an alfalfa crop on an alleged contract of insurance. Two trials were had. The jury disagreed on the first and rendered verdict for plaintiff in the amount of $9,595 on the second. Plaintiff's motion for new trial having been refused and judgment having been entered on the verdict, this appeal by the defendant insurer followed.

Defendant questions the sufficiency of the evidence to sustain the verdict. In this regard, we may examine the record to determine only whether there is any competent and substantial evidence to support the verdict. In doing so we are obligated to resolve all conflicts in the evidence, and to draw all reasonable inferences arising therefrom, favorable to the prevailing party.

Briefly summarizing the evidence in such light it appears that the plaintiff, Carlos W. Bentz, is a farmer living near Newell, South Dakota. For many years his insurance needs were handled by Guy H. Hemminger of Deadwood. Hemminger represented several different insurers including the defendant Cimarron Insurance Company. In 1955 plaintiff had a crop of alfalfa growing on 60 acres of irrigated land which he intended to harvest for seed. On August 25th he went to Mr. Hemminger's office to obtain insurance on said crop and requested coverage against loss by fire, wind, and hail. The value of the crop was determined to be $12,600 computed on the basis of 7 bushels of seed per acre at $30 per bushel. Hemminger made and filed a written notation of such crop valuation. Because plaintiff wanted the crop insured while in the field Hemminger said it would be necessary to take it up with some companies and he would notify plaintiff when covered and would bill him for the premium. On September 8, 1955 plaintiff received a letter from agent Hemminger which plaintiff regards and refers to as a 'binder'. The pertinent part of the letter which was marked and received into evidence as Exhibit 2 reads as follows:

'The other company from whom I ordered the coverage for the growing seed crop in the amount of $12,600.00 has acknowledged my letter and they have accepted binder from August 25th, 1955 to December 1st, the end of the season and the end of the policy year. This coverage covers the crop only while it is in the open and coverage ceases immediately when it is stored in a building either temporarily or permanently. The rate on this is $.20 per hundred for the period and the premium would be $25.20. This Company has also requested the necessary information to complete the binder. This information is the same as requested in the first paragraph.

'When we get all this information we will bill you for the premium and send you the policies. You are now covered.'

On September 28th the alfalfa crop was severely damaged by wind and hail and plaintiff made oral and written proof of loss, and furnished the legal description of the land requested in the 'binder' letter. The actual policy of insurance was not issued by defendant until October 5, 1955. It was countersigned by agent Hemminger on October 17, 1955. The policy period was stated to be from August 25, 1955 to October 25, 1955 and loss on cut or uncut grains by windstorm and hail was limited to grain in buildings.

Defendant denied liability contending the only peril talked about and the only peril insured against either under the so-called 'binder' or its policy was loss by fire. The evidence on this point is sharply conflicting. This issue was submitted to the jury and determined adversely to defendant.

As there is competent evidence in the record to sustain the verdict based on conflicting evidence, the same is conclusive on appeal in the absence of some error at law occurring during the trial. In this respect, defendant urges that the trial court erred in rejecting Exhibits A-10, A-14, and A-15. These exhibits are all letters written or received by defendant's witness, and agent, Guy H. Hemminger.

Exhibit A-10 is a copy of a letter written by agent Hemminger on July 21, 1955, and addressed to the Fritz A. Forseth Company, Aberdeen, South Dakota. The Forseth Company had no connection with the defendant insurer and the final offer of this exhibit was withdrawn by defendant. As there was no final ruling with reference to this exhibit no error could be predicated thereon.

Exhibit A-14 is a copy of a letter written by agent Hemminger on September 2, 1955 addressed to the defendant's divisional office in Minneapolis, as follows:

'I have a party, Mr. Carlos Bentz of 842 Main Street, Deadwood who asked me to write his fire insurance on his growing alfalfa crop which he is leaving for seed. He was in on August 18th from his farm one mile north of the Arpan Store in Butte County, South Dakota where he has 60 acres of alfalfa. He wanted this insurance to be in effect for thirty days from August 25th to September 25th at which time he expects to have the crop in the stack. He was to send in the legal description of the land where this crop is located but to date he has not sent it in. He and his family are living temporarily on the farm and I have not seen him in town.

'He estimated his yield to be 7 bushels per acre or 420 bushels from the 60 acres at $30.00 per bushel or a total of $12,600.00. I do not know how you figure this premium, do you use the 'Specific on cut or uncut' Acreage plan--fire only at $.20 per $100.00 per month with a minimum term of two months?

'I would like you to advise me on this and I will try to get the description of the land in the meantime. I do not know if you can put a binder on this with the above information or not. Advise if you can.'

Exhibit A-15 is the original letter dated September 6, 1955 received by agent Hemminger in response to Exhibit A-14 from defendant. It is signed by D. D. Sewell, Special Agent. It reads as follows:

'Receipt is acknowledged of your letter dated September 2, 1955 and we hereby accept binder from August 25th, 1955 covering 60 acres of alfalfa grown for seed on land (description to follow) on land located one mile north of the Arpan Store in Butte County, So. Dak in the amount of $12,600.

'Please be sure to advise your customer that Specific insurance on cut or uncut grain under the Acreage Plan covers the crop only while it is in the open and coverage ceases immediately when it is stored in a building either temporarily or permanently. This coverage cost 20cents per $100. of coverage for the season which, in any event, expires December 1st of...