Strong v. State Farm Mut. Ins. Co.

• Decision Date: 22 October 1956
• Docket Number: No. 9589,9589
• Parties: Wesley M. STRONG, Plaintiff and Respondent, v. STATE FARM MUTUAL INSURANCE COMPANY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 828

78 N.W.2d 828

76 S.D. 367

Wesley M. STRONG, Plaintiff and Respondent, v. STATE FARM MUTUAL INSURANCE COMPANY, Defendant and Appellant.

No. 9589.

Supreme Court of South Dakota.

Oct. 22, 1956.

Whiting, Lynn & Freiberg, Rapid City, for defendant and appellant.

Bangs & McCullen, Joseph Butler, Rapid City, for plaintiff and respondent.

HANSON, Judge.

The plaintiff's automobile was accidently damaged on March 20, 1955. This is an action to recover that loss under a policy of automobile insurance issued by the defendant, State Farm Mutual Insurance Company, to the plaintiff. The case was submitted on stipulated facts upon which verdict was directed in favor of plaintiff. The defendant appeals.

The defendant disclaims liability by reason of an alleged false representation made in the application for insurance. The defendant claims the plaintiff falsely answered the following question 17 in the negative:

'Has any insurer cancelled or refused to renew any kind of automobile insurance for any driver?'

The plaintiff applied for insurance in the defendant company on January 21, 1955. Prior thereto he had received and read the following letter from his then insurer, the Farmers Mutual Automobile Insurance Company:

'Expiration Date 1-24-55

'Circumstances will not permit us to continue your insurance in the Farmers Mutual Insurance Company.

'Therefore, the protection extended under the above numbered policy will lapse on the expiration date shown above'.

The plaintiff's policy with the Farmers Mutual Company was originally issued for a period of six months commencing on January 24, 1952. In accord with the above letter the policy expired on January 24, 1955. The policy had been automatically renewed every six months by payment of premiums in response to notices sent out by the company. No new applications or requests were necessary to effect the renewals and the policy was so renewed at least five times.

This is not the case of an insured attempting to avoid the implications of an insurance application for failure to read or understand the same. Here the plaintiff stipulated he signed the application with knowledge of its contents; that question 17 was material to the risk assumed by the defendant; and that the policy was issued in reliance upon the application.

The sole question presented is whether or not the plaintiff's negative answer to question 17 of the application for insurance was false. If so, defendant's policy is voidable under the rule that a misrepresentation of a material fact, in reliance upon which a contract of insurance is issued, avoids the contract. Smith v. Federal Surety Co., 60 S.D. 100, 243 N.W. 664.

The plaintiff principally relies upon the case of Erickson v. Allstate Insurance Co., D.C., 126 F.Supp. 100, to sustain his position. This case was later affirmed. See also 9 Cir., 227 F.2d 755. However, we do not consider the facts of that case sufficiently similar to be controlling.

In deciding this question we are mindful of the well-established principle that a contract of insurance is to be construed liberally in favor of the insured and strictly against the insurer. Ehrke v. North American Life & Casualty Co., 71 S.D. 376, 24 N.W.2d 640. However, there are definite limitations on the application and use of such rule. As stated in 44 C.J.S., Insurance, Sec. 297(2), p. 1190:

'The rule of liberal construction in favor of the insured and strict construction against the insurer applies only where the language of the contract is ambiguous and susceptible of more than one interpretation and is also subject to the further limitation that such language ordinarily cannot be construed otherwise than according to its plain and ordinary meaning.'

In speaking of this rule our court has said:

'Construction which distorts the plainly revealed sense in which parties have understood words cannot be justified in the name of liberal interpretation.' Life Benefit, Inc., v. Elfring, 69 S.D. 85, 7 N.W.2d 133, 135.

Also this rule does not permit the court to make a forced construction or new contract for the parties. Thompson v. State Auto. Ins. Ass'n, 70 S.D. 412, 18 N.W.2d 286. The facts of this case place it within the limitations of that rule.

A refusal to renew a policy of insurance need not be in any particular form. Nor do the reasons for the refusal have to be stated. It is sufficient when the insurer clearly and unequivocally indicates to the insured its unwillingness to continue upon the risk. Emery v. Pacific Employers Inc. Co., 8 Cal.2d 663...