Day v. Northwest German Farmers’ Mut. Ins. Co., 6530
| Decision Date | 12 August 1930 |
| Docket Number | 6530 |
| Parties | IRA O. DAY, Respondent, v. NORTHWEST GERMAN FARMERS' MUTUAL INS. CO., Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, McPherson County, SD
Theo. J. P. Giedt, Eureka, SD
J. M. Berry, Ipswich, SD
Attorneys for Appellant.
W. M. Potts, Mobridge, SD
Thomas Ringsrud, Eureka, SD
Attorneys for Respondent.
Opinion filed Aug 12, 1930
This is an action on a policy of fire insurance. The jury returned a verdict in favor of the plaintiff for $1,816.41. From a judgment entered on this verdict and an order denying a new trial, defendant appeals.
Only five of the thirteen assignments of error were argued. They are: Nos. 7, 10, 11, 12, and 13. The assignments not argued are deemed abandoned. Steensland v. Noel, 134 N.W. 207.
Assignments Nos. 7, 10, and 11 were argued together. No. 7 predicates error on the refusal to direct a verdict for defendant at the close of plaintiff’s testimony; No. 10, on the refusal to direct a verdict at the close of the case; and No. 11 specified the particulars in which the evidence is insufficient to support the verdict. The particular point presented by each of these assignments was that the title and possession of the subject of insurance had been changed without the consent of defendant. Assignments Nos. 12 and 13 were argued together and relate to denying defendant’s motion for a new trial.
The insurance policy contained the following clause: “This entire policy, unless otherwise provided by agreement, endorsed hereon or added hereto, shall be void ... if the interest of the insured be other than unconditional and sole ownership ... or if any change other than by death of an insured take place in the interest, title or possession of the subject of insurance (except change of occupancy without increased hazard) whether by legal process or judgment or by voluntary act of an insured or otherwise. ...”
The facts necessary to determine the question presented are as follows: When Day obtained this policy of insurance on June 26, 1923, he was the sole owner and, with his family, in exclusive possession of the land and buildings covered by this insurance.
About the month of February or March, 1925, Day agreed to sell the land to one Schnabel, and on April 1, 1925, delivered possession of the land and buildings to him. Schnabel and his family have been in the sole and exclusive possession of the premises covered by the insurance ever since said time. It is the contention of appellant that this was a sale and delivery of the land to Schnabel and rendered the contract of insurance void.
It is the contention of respondent that the deed and mortgage were not delivered, but were left in escrow with one Anderson, who was acting as attorney for both parties in making the transfer, and were not to be delivered until a policy of insurance for $2,000 upon said buildings, in favor of Day, was obtained.
By the terms of the policy the change of occupancy only avoided the policy when it increased the hazard or risk of the insurance company.
It seems to be established by the great weight of authority that where the question is properly raised, the burden of proof is upon the insurance company to show that the change in occupancy increased the fire hazard.
“It is generally held; without regard to whether the breach complained of is that of a condition precedent or a promissory warranty or conditions subsequent, that defendant has the burden of proving the facts alleged by it as constituting such a breach ... accordingly where defendant relies on such facts as a ground for avoiding the policy ... the burden is on it to prove ... that the risk or hazard was increased in violation of the terms of the policy.”
26 CJ p. 516, § 725. In note 42 on the same page is given a large list of authorities from many different states sustaining this text.
There is no proof in this record showing whether the change of occupancy did or did not increase the fire hazard. That being the case, proof of the mere change of occupancy from Day to Schnabel, without any showing that such change increased the fire hazard, did not avoid the policy of insurance. We are not unmindful of the decisions of this court in Smith v. Sec. Mut. Fire Ins. Co., 158 N.W. 991; Smith, Trustee, v. Retail Merchants’ Fire Ins. Co., 42 LRA (NS) 173; and Russell v. Elliott, 22 ALR 556. But in none of these cases was the question of who had the burden of proving whether or not the fire hazard was increased by the change of occupancy presented or decided.
Here the question of who must advance the proof as to the increase of such risk is presented, and we hold that the burden of making such...
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