Miller v. Queen City Fire Ins. Co.

• Decision Date: 26 June 1924
• Docket Number: 5548
• Parties: ELMO MILLER, Plaintiff and respondent, v. QUEEN CITY FIRE INSURANCE COMPANY, Defendant and appellant.
• Court: South Dakota Supreme Court

47 S.D. 379

199 N.W. 455

ELMO MILLER, Plaintiff and respondent, v. QUEEN CITY FIRE INSURANCE COMPANY,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Roberts County, SD

Hon. J. J. Batterton, Judge

#5548--Reversed

Bailey & Voorhees, T. M. Bailey, Sioux Falls, SD

Attorneys for Appellant.

Jorgenson & Anderberg, Sisseton, SD

Attorneys for Respondent.

Opinion filed June 26, 1924

GATES, P. J.

This is an action to recover a loss to growing crops insured against loss by hail for the season of 1922. Plaintiff owned all interest in the crops. The amount of insurance under this policy was: On 50 acres of wheat, not to exceed $20 per acre; on 3o acres of rye, not to exceed $10 per acre; on 40 acres of barley, not to exceed $10 per acre; and on another field of rye of 120 acres, not to exceed $10 per acre--or a total insurance of $2,900. There was a partial loss in June for which the defendant paid the sum of $1,275 and in July there was a total loss. Plaintiff claims to recover the sum of $1,625, that being the difference between the amount of insurance and the amount paid for the June loss. Before the trial defendant served and filed an offer of judgment in the sum of $600 with interest and accrued costs, which was rejected. The case was tried upon an agreed statement of facts. The findings of fact were in accord therewith. The conclusions of law were favorable to plaintiff and the trial court entered judgment again defendant for $1,625 with interest and costs. Defendant appeals.

There was other insurance in two other companies, so that in all three companies the 50 acres of wheat were insured for $45 per acre; 20 acres of the 30 acres of rye were insured for $30 per acre; the remaining 10 acres of the 30 acres of rye were insured for $20 per acre; the 40 acres of barley were insured for $30 per acre; and the 120 acres of rye were insured for $30 per acre. Beside. These amounts the 4o acres of barley and 107 acres of the 120 acres of rye were further insured for $10 per acre under the state hail insurance department. The portions of the policy which we find material to the present inquiry are as follows (paragraph numbers are ours):

"1. Total insurance for all interests on the crop described herein shall not exceed $30 per acre on irrigated land and $20 per acre on nonirrigated land; however, in the event that the total insurance per acre exceeds this limit, this company shall be liable only for its pro rata part of such limit, per acre, it being understood and agreed that the liability of this company shall in no event be held to exceed the actual proportionate interest of the assured in the crop described and insured hereunder.

"2. If the total insurance on this crop shall exceed the maximum limits permitted hereunder, the company shall, on demand, refund the premium on such excess.

"3. In the event of the total destruction by hail only of the crops hereby described or any part thereof, the amount payable hereunder as to each acre where this policy covers shall be the amount per acre named herein, and event of partial destruction by hail only of the crops, or any part thereof, described in this policy, the amount payable per acre under this policy shall be in such proportion to the amount per acre specified herein as the damaged portion of said crop or crops bears to the sound condition of the particular crop or crops so damaged.

"4. Upon adjustment of a loss or losses to the property insured the total amount of insurance named in this policy, and the limit per acre named in this policy on each acre so damaged, shall be reduced in the amount allowed for each and every loss.

"5. This company shall not be liable for any loss or damage by hail to the crops hereby described unless the loss or damage equals five per cent (5%) or more of the total hail insurance covering the particular crop so damaged."

The policies of the two other insurance companies have the same provisions, but there is no limit of total insurance under the laws governing the South Dakota hail insurance department.

Appellant seeks a construction of paragraph 1 in accordance with what it contends is the plain and unambiguous meaning of the paragraph, to wit: That total concurrent insurance cannot exceed $20 per acre on nonirrigated land, which this was; that if the total concurrent insurance exceeds that amount per acre the company shall only be holden for its proportionate share of that limit and that it shall refund the excess premium.

Respondent contends that the clause in paragraph 1 "total insurance for all interests on the crop" refers only to insurance carried by this insurer on the crop and not to concurrent insurance in other companies; that the words "all interests" cover the interests of landlord, tenant, mortgagor, mortgagee, etc.; and that the true intent of this policy is that the aggregate insurance in this company upon the several interests whether carried in one or more policies shall not exceed the sum of $20 per acre. Respondent cites examples of difficulty of construction of the clause in paragraph 1...