Epiphany Rom. Cath. Church v. German Ins. Co.

• Court: South Dakota Supreme Court
• Writing for the Court: HANEY, P. J.
• Citation: Epiphany Rom. Cath. Church v. German Ins. Co. , 16 S.D. 17, 91 N.W. 332 (S.D. 1902)
• Decision Date: 02 July 1902
• Parties: EPPIHANY ROMAN CATHOLIC CHURCH, Plaintiff and respondent, v. GERMAN INSURANCE COMPANY, Defendant and appellant.

16 S.D. 17

91 N.W. 332

EPPIHANY ROMAN CATHOLIC CHURCH, Plaintiff and respondent,

v.

GERMAN INSURANCE COMPANY, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Hanson County, SD Hon. Frank B. Smith, Judge Affirmed P. A. Zollman, M. L. Countryman Attorneys for appellant. J. L. Hannett Attorney for respondent. Opinion filed July 2, 1902

HANEY, P. J.

The object of this action is to reform a fire, lightning, tornado and cyclone insurance policy, and to recover the full amount of insurance provided for therein on a church building and its contents, totally destroyed by a cyclone April 27, 1896. The cause was submitted upon an agreed statement of facts, which was adopted as the findings of the court and judgment was rendered reforming the contract, and awarding the plaintiff the amount claimed, with costs and disbursements. Defendant appealed from the judgment alone.

The contention that plaintiff should not recover, because it failed to give immediate notice of loss, is untenable. The policy, in form a standard fire policy, contains this clause: “If fire occur, the insured shall give immediate notice of loss.” Attached, to the face of the policy, in the form of a slip or rider, and made a part thereof, is the following clause:

“This insurance also covers loss or damage by lightning, tornado, cyclones or windstorms. In event of loss, by tornado same must be in excess of ten dollars; otherwise this company will not recognize or adjust the same.”

As stated in the agreed statement of facts, when this slip or rider was attached it became a part of the policy. Therefore the written contract must be construed as one instrument, with the lightning, tornado, cyclone and windstorm clause included. Thus considered, its terms, by specifying that immediate notice shall be given if fire occur, exclude the necessity of such notice where the loss results from any other cause covered by the policy. If the insurer desired immediate notice of loss caused otherwise than by fire, it should have specified such other cause, or have provided that “if any loss occur under this policy, immediate notice thereof shall be given.” Though based upon another ground, the learned circuit court was clearly right in holding that plaintiff was not precluded from recovering in this action by reason of its failure to give immediate notice of the destruction of the insured property by a cyclone, as such notice was not required by the terms of the policy.

It is contended that “the policy was not in force at the time of the loss; the premium not having been paid when due, and the insured having consented to the cancellation of the policy.” The agreed premium was $99, for which a note was given, signed by the plaintiff’s secretary and treasurer, payable January 2, 1896. No part of this note had been paid when the loss occurred. On May 1, 1896, plaintiff tendered to defendant the amount due thereon, including interest, which was refused, whereupon plaintiff deposited the full amount of such note and interest in a responsible bank at Alexandria in this state, where it has since remained on deposit. On December 10, 1895, the plaintiff’s secretary and treasurer were each sent the following notice by mail, signed by defendant’s secretary:

“Your note No. 340,705 given for insurance in the German Insurance Company, will become due on the 2nd day of January, 1896. You are hereby authorized to send by draft or post office money order. Always make payable to the order of German Insurance Co., Freeport, Ill. Amount of note $99; interest, $5.80; total, $104.80. If paid prior to maturity all interest shall be waived. You will please remit the same to us at or before maturity, in the inclosed envelope, as instructed herein; and on receipt of the same your note will be returned to you, duly receipted. Do not fail to be prompt in sending the amount when due, as you cannot recover in case of loss after the note becomes due until the same is paid.”

No other notice was given the plaintiff prior to the maturity of the note. Concerning the cancellation and forfeiture of policies of insurance against loss or damage to property by fire or other casualty, our statutes contain the following provisions as to notice:

“No such policy of insurance...