Kennedy v. Agricultural Ins. Co. of Sioux Falls

• Decision Date: 19 December 1906
• Citation: 110 N.W. 116,21 S.D. 145
• Parties: KENNEDY v. AGRICULTURAL INS. CO. OF SIOUX FALLS.
• Court: South Dakota Supreme Court

110 N.W. 116

21 S.D. 145

KENNEDY v. AGRICULTURAL INS. CO. OF SIOUX FALLS.

Supreme Court of South Dakota

December 19, 1906

Appeal from Circuit Court, Faulk County.

An action by Michael Kennedy against the Agricultural Insurance Company of Sioux Falls, S.D. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Joe Kirby, for appellant.

Frank Turner, for respondent.

HANEY J.

This action is on an insurance policy alleged to have been issued by the defendant.

On November 21, 1902, the defendant answered the complaint. On March 5, 1903, both parties noticed the cause for trial and filed notes of issue. Subsequently the plaintiff served notice of motion for leave to file an amended complaint with a copy of the proposed amended pleading. On June 17, 1903 this motion was granted and defendant answered. The cause then being called for trial, defendant moved that it be stricken from the calendar and go over the term, for the reason that it was not at issue when the notice of trial was served, the issues having been changed. No statement or claim was made that defendant was taken by surprise or would be unable to try the cause on account of the amendment. The overruling of this motion was not reversible error. J. I Case Threshing M. Co. v. Eichinger, 15 S.D. 530, 91 N.W 82.

The allegations of the amended complaint are in substance as follows: (1) That the defendant is an insurance corporation existing under and by virtue of the laws of this state; (2) that on June 10, 1902, the defendant, for a valuable consideration, executed and delivered to the plaintiff its policy of insurance, whereby it insured a certain frame barn, then owned by the plaintiff, against loss or damage by fire, lightning, and tornado, to the extent of $350, for the period of three years from and after June 9, 1902; (3) that thereafter, while such policy was in force, on July 31, 1902, the property so insured was entirely destroyed by a tornado; (4) that immediately thereafter, and more than 60 days prior to the commencement of this action, plaintiff gave to defendant the usual and necessary notice and proof of loss, and that, upon receiving notice of said loss, defendant sent its adjuster to examine and adjust said loss, that thereupon defendant waived further proof of loss; and (5) that defendant has wholly failed and refused to pay said loss or any part thereof, and that there is now due and owing to plaintiff thereon the sum of $365, together with 7 per cent. interest thereon from September 30, 1902. Defendant's answer denies every allegation of the amended complaint not expressly admitted, expressly admits defendant's corporate existence, and alleges: "That the policy of insurance issued by this defendant to the plaintiff was issued upon a representation and warranty, on the part of said plaintiff to this defendant that there was no other insurance upon said property and that said policy contained the following provision and limitation, to wit: 'This policy shall be null and void if additional insurance is obtained without the written consent of this company [defendant in this action].' That, contrary to the terms of said representations and warranty, and contrary to the terms of said policy, said plaintiff had procured, and there was at all times mentioned in the pleadings in this action, additional insurance upon said property, which additional insurance was obtained without the written consent of this company and without its consent in any manner."

Numerous rulings on the admission of evidence, tending to prove the issuance of the policy and a waiver of proofs of loss, and certain remarks of the learned circuit judge in connection therewith, are claimed to have been erroneous. If there was any error in these rulings or remarks it was harmless. No testimony was offered by the defendant. From that introduced by the plaintiff, without objection, or to which no valid objection was interposed, it clearly appeared that the policy was issued as alleged; that the insured property was damaged by a tornado; that it was owned by the plaintiff when insured and when damaged; and that proof of loss was waived by defendant's denial of any liability on the ground of unauthorized additional insurance. All the material facts were...