Reeves v. National Fire Ins. Co.

• Decision Date: 30 January 1919
• Docket Number: 4424
• Citation: 41 S.D. 341,170 N.W. 575
• Parties: D. W. REEVES, Plaintiff and Respondent, v. NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Defendant and Appellant, Farmers' State Bank of Bruce, South Dakota, Intervener.
• Court: South Dakota Supreme Court

41 S.D. 341

170 N.W. 575

D. W. REEVES, Plaintiff and Respondent,

v.

NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Defendant and Appellant, Farmers' State Bank of Bruce, South Dakota, Intervener. South Dakota Supreme Court Appeal from Circuit Court, Brookings County, SD Hon. Carl G. Sherwood, Judge #4424--Affirmed Cheever & Cheever, C. O. Trygstad Attorneys for Appellant. Hall, Alexander & Purdy Attorneys for Respondent. Opinion filed January 30, 1919

WHITING, J.

Defendant insured plaintiff's crops against damage by hail. The policy covered 4311 acres of wheat, oats, barley, and flax; the same being insured in the sum of not to exceed $10 per acre, or $4,310. Suit was brought on this policy, resulting in a verdict of $2,692 and interest. From judgment entered thereon, and from an order denying a new trial, this appeal was taken.

Appellant contends that respondent was not entitled to recover at all, because of his failure to furnish the proof of loss required by the policy; that respondent was not entitled to recover in excess of $381 for damage to wheat, oats, and barley, because of an alleged adjustment of such damages; and that respondent was not entitled to recover the amount found by the jury because such amount is excessive under the evidence and law.

We find it more convenient to first consider the alleged adjustment. The facts touching this matter are briefly as follows: Respondent was out of the state at time of the storm. Upon being advised by his wife that his crops had been injured by hail, he wrote a letter to the Farmers' State Bank, a bank located in his home town, in which, among. other things, he stated:

"I would like Messrs. Buck & Skarlarken to act in my stead in adjusting the loss. ..."

Skarlarken undertook to make proof of loss and to adjust same. Purporting to act as agent for respondent, he executed proof of loss, showing loss on wheat, oats, and barley in sum total of $381. This "proof of loss" was approved by the adjuster representing appellant, and the appellant afterwards tendered $381 in settlement for loss on wheat, oats, and barley. Respondent contends that by his letter he constituted Buck & Skarlarken his joint agents, and that Skarlarken, acting alone, was without power to enter into any agreement for adjustment of loss. It is perfectly clear that the words we have quoted, from the letter would, if standing alone, create a joint agency only, under the, well-established rule that, where one employs two or more to represent him in a matter of business, the presumption is that such employees are joint agents; but appellant contends that the remainder of the letter, together with other evidence introduced, was sufficient to warrant the jury in finding the agency of Buck & Skarlarken to be both joint and several. At respondent's request, the court, in addition to instructions given on its own motion, gave further and quite extensive instructions, a part of which was as follows:

"You are instructed that, when a principal employs more than one agent to represent him in the same matter of business, they are joint agents, the exercise of whose joint discretion is desired, and an act performed by one ... is not such an execution of authority as to hind the principal."

This was followed by an instruction as to the power of one joint agent to bind his principal, and as to the effect of ratification of an unauthorized act of an agent. The appellant entered a general exception to all of the requested instructions, setting the same out in full, but in no manner pointing out any particular part excepted to. It now complains of only that part which we have quoted. The exception taken was ineffective. It was appellant's duty to call the trial court's attention to the particular part of these instructions it considered erroneous. As early as the case of Kennedy v. Falde, 4 Dak. 319, it was held:

"An objection or exception should state the point with accurate clearness, so that there can be no question in the appellate court relative to what the question is. Exceptions to the charge of a court should point out the specific portions of the charge excepted to. ... The office of an exception is to point out some specific error in law, and the counsel should, by his exception, lay his finger upon the precise ... error in the charge. ...

We think this case well illustrates the soundness of the rule, so early announced and so consistently adhered to in this jurisdiction. Immediately following the instructions excepted to came an instruction unexcepted to, and which in part was as follows:

"But if you find he appointed both Mr. Buck and Mr. Skarlarken, and only one acted, then the plaintiff would not be bound by the acts of that one. ..."

Certainly, not having excepted to this last instruction, it would not be presumed that appellant took any exception to that part of the "requested instruction" which we have quoted; moreover, the trial court would in no manner be advised by the exception that the sole and only ground of exception which was in appellant's mind was because the court did not, instead of saying, "they are joint agents," say, "they are presumed to be joint agents"—the thing now complained of. The only assignment of error, and therefore, as we must presume, the only specification of error, directed to the instruction above considered, merely claimed error in the whole instruction, quoting same, and in no manner pointing out wherein same was erroneous. Such an assignment or specification presents no error. Hedlun v. Holy Terror Min. Co., 92 N.W. 31; Mahoney v. Smith, decided at this term.

The policy sued on contained provisions to the effect that formal proof of loss must be made within 60 days after loss is suffered, that no denial of liability or other act on the part of the insurer should waive or dispense with the furnishing of such proof of loss, and that without such proof of loss the appellant should not be liable. The facts are undisputed. As above noted respondent was away from home at the time of the storm. He did not return for some three weeks thereafter. At request of respondent's wife, Skarlarken, in respondent's name, gave to appellant written notice of loss and the estimated amount thereof. Appellant turned the matter of adjustment over to an adjustment company. This company sent the adjuster, who, with Skarlarken, examined the fields. The adjuster made out what purported to be a proof of loss on wheat, oats, and barley, and, as above noted, this was executed by Skarlarken, purporting to act as agent for respondent. The adjuster approved the claimed loss,...