Hildebrand v. Washington Nat. Ins. Co.
| Decision Date | 11 April 1942 |
| Docket Number | 35373. |
| Citation | 124 P.2d 510,155 Kan. 220 |
| Parties | HILDEBRAND v. WASHINGTON NAT. INS. CO. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
An accident policy covering injury sustained while riding in a "moving farm vehicle" did not cover injury to insured while engaged in adjusting stationary combine with the motor running.
A statement on a policy that "this policy provides benefits for loss of life, limb, sight or time caused by accidental means, to the extent herein limited and provided", was merely a descriptive statement not adding to the effectiveness of the policy and hence not within the statute dealing with the size of type used in printing various clauses. Gen.St.1935, 40-1109(a) (5).
A portion of policy which was preceded by the words "insuring clause" and which was followed by language that related to specific benefits, optional benefits, and which was followed by a clause providing no situation under which insurer would be liable for a less amount than that provided for the same loss occurring under ordinary circumstances was not within the statute dealing with the size of type used in printing various clauses Gen.St.1935, 40-1109.
In an action on an accident insurance policy it is held that the provisions of G.S. 1935, 40-1109, requiring that any portion of a policy which purports by reason of the circumstances under which the loss was incurred to reduce any indemnity promised therein to an amount less than that provided for the same loss occurring under ordinary circumstances shall be printed in bold-face type in greater prominence than the other portion of the policy does not apply when the clause under consideration merely sets out certain specified risks which the policy covers.
Appeal from District Court, Stafford County; Wendel Ready, Judge pro tem.
Action by Herman Hildebrand against the Washington National Insurance Company to recover on an accident policy. From a judgment for plaintiff, defendant appeals.
Reversed with directions.
J. S Simmons, Alva L. Fenn, and Stuart Simmons, all of Hutchinson for appellant.
Evart Garvin and Morris Garvin, both of St. John, for appellee.
This was an action on an accident insurance contract. Judgment was for the plaintiff. Defendant appeals.
The petition alleged that on a date when the policy was in effect the glove on the right hand of plaintiff got in the beater of his combine with the result that his hand and arm were mangled and it was necessary to amputate his right hand; that on account of this defendant became liable to plaintiff for $500; that proof of loss had been made and defendant refused to pay. The petition also alleged that the policy did not comply with G.S.1935, 40-1109, because the benefits promised by the policy were printed in 18-point type and that the exceptions contained were printed in 10-point type and were printed with less prominence than the benefits and that on that account the policy failed to comply with the above statute of Kansas, which provided that no portion of a policy which purported by reason of the circumstances under which a loss was incurred to reduce any indemnity promised therein to an amount less than that provided for the same loss occurring under ordinary circumstances, must be printed in bold-face type with greater prominence than any other portion of the policy. A copy of the policy was attached to the petition.
The defendant answered by way of a general denial and further that the policy was issued and delivered in Iowa and hence was not subject to the laws of Kansas.
The parties entered into a stipulation as to the facts. First, as to the injury, it was agreed that on June 19, 1939, the plaintiff was working with his combine; that the combine was attached to the plaintiff's tractor; that the motor of the combine was running and the plaintiff was engaged in adjusting the combine and that his hand was drawn into the combine, with the result that it had to be amputated and at the time the injury occurred the tractor and combine were not moving on the ground and were stationary. The policy provided in part that plaintiff was insured against the injury sustained while riding in a moving farm vehicle. It is true the combine was running but it was not moving upon the ground; it was going nowhere and movement was contemplated. Under such circumstances, we cannot hold that the provision subsequently quoted covered the injury to plaintiff. See Eynon v. Continental Life Ins. Co., 252 Mich. 279, 233 N.W. 228.
Plaintiff does not seriously contend that the above is not the rule. He relies upon the provisions of G.S.1935, 40-1109. That section provides, in part, as follows:
"(a) No stock or mutual insurance company or association or other insurer shall issue or deliver any policy of insurance against loss or damage for the sickness or the bodily injury or death of the insured by accident to any person in this state, *** (5) unless a brief description thereof be printed on its first page and on its filing back in type of which the face shall be not smaller than fourteen point; nor (6) unless the exceptions of the policy be printed with the same prominence as the benefits to which they apply: Provided, however, That any portion of such policy which purports, by reason of the circumstances under which a loss is incurred, to reduce any indemnity promised therein to an amount less than that provided for the same loss occurring under ordinary circumstances shall be printed in bold-face type and with greater prominence than any other portion of the text of the policy."
Plaintiff argues that the provision in the policy referred to as paragraph "g" is really a provision reducing the amount of indemnity promised on account of the peculiar circumstances and that since it is not printed in bold-face type and of greater prominence than the other portions of the text of the policy, it is inoperative and should be stricken from the policy in considering this case.
This takes us to an examination of the policy itself. On the filing back of the policy appears the following in 18-point bold-face type: "This policy provides benefits for loss of life, limb, sight, or time, caused by accidental means, to the extent herein limited and provided."
Plaintiff argues that this is a part of the insurance clause of the...
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