Kent v. Association Life Ins. Co., 10502

• Decision Date: 25 March 1969
• Docket Number: No. 10502,10502
• Parties: Georgie KENT, Plaintiff and Appellant, v. ASSOCIATION LIFE INSURANCE CO., Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 429

166 N.W.2d 429

84 S.D. 8

Georgie KENT, Plaintiff and Appellant, v. ASSOCIATION LIFE INSURANCE CO., Defendant and Respondent.

No. 10502.

Supreme Court of South Dakota.

March 25, 1969.

Beardsley, Osheim & Wagner, Watertown, S.D., D. G. Syvertson, Clark, for plaintiff and appellant.

Gribbin & Burns and Thomas G. Ries, Watertown, for defendant and respondent.

BIEGELMEIER, Presiding Judge.

On June 17, 1966, one James W. Pederson, an agent of defendant insurance company, which was writing group insurance on individuals through the South Dakota Bakers' Association, called at the Kent's Bakery to solicit applications for insurance. Kent's Bakery was owned by Dale Kent and his wife Georgie G. Kent and had one full-time and one part-time employee. After some conversations with the two owners, Dale Kent signed two cards--a white one on both sides and the yellow one on one side. The yellow card, titled Application For Group Insurance, stated the Employing Company (employer), Beneficiary and the Bakery Association and authorized the employer, Kent's Bakery, 'When this plan begins' to deduct from the employee's wages his contribution toward the cost of the insurance plan. It also had a detachable postcard on which was printed:

'IF YOU WANT US TO NOTIFY YOU OF YOUR INSURANCE EFFECTIVE DATE, PLEASE FILL OUT YOUR NAME AND ADDRESS ON THE REVERSE SIDE. (it was not filled out) Dear Policyholder: Your insurance surance will become effective on _ _ for health and accident, and/or _ _ for life. Association Insurance Co.'

The white card directed to the company was titled 'EMPLOYER'S APPLICATION FOR GROUP INSURANCE'. It included information to be filled in blanks on lines numbered 1 through 8, such as company name, type of ownership (answered as sole proprietor); that the bakery would pay 50% Of the premiums and that insurance would cover one of the two employees. The last sentence immediately over the signature stated: 'it is also understood that insurance will not be in force as presented until accepted by the insurance company.' The reverse side contained over forth spaces mostly for agents or office use. Under one space, 'EFFECTIVE DATE', 'June 17--66' was written, while at another place the effective date space was blank as were most of the others. Plaintiff, her son and his wife testified the agent stated Mr. Kent would be covered immediately, though the two last named left the bakery before Mr. Kent signed the application. The agent testified he told them if Kent was killed by a car tomorrow he was covered 'providing that you are accepted by the company', and it was effective as of today 'conditioned on the acceptance by the company'.

The cards, with a check payable to 'Life Insurance Co' for the premium on a policy covering Mr. Kent only, were sent to the company. The company on June 23, 1966, by letter to the agent, declined to accept the application for group insurance on one person and returned the check and application to him. On June 29th the agent called at the bakery to tell them he was not covered and to get the other employee insured, but Mr. Kent was absent and Mrs. Kent said she had not talked to him about that which she was going to do.

On July 2nd the company wrote a letter to the bakery the policy could not be issued until the other eligible employees completed the enclosed application cards. Mr. Kent was killed July 3, 1966.

The first cause of action in plaintiff's complaint was on the theory that application for insurance was accepted by the insurance company by its agent who solicited the insurance. On this issue the court found the agent 'did not have the authority to place the insurance applied for by the applicant in force, and that said insurance was never placed in force by the Defendant Insurance Company.' Plaintiff's assignment of error merely states the court erred in so finding which it seems must rest on a claim of the insufficiency of evidence to justify it. While Supreme Court Rule 63 of 1939 (SDC 1960 Supp. 33.0735) provides 'the assignment must state the particulars in which the evidence is claimed to be insufficient' and this assignment does not do so, our review on a proper assignment is nevertheless limited.

'It is well settled that the credibility of witnesses and weight of evidence is for the trial court and that a reviewing court accepts that version of the evidence, including the inferences that can be fairly drawn therefrom, which...