Larson v. Equitable Life Assur. Soc. of the United States

220 N.W. 466, 53 S.D. 148, 1928 S.D. LEXIS 62

• Court: South Dakota Supreme Court
• Decided: July 7, 1928
• Docket: File No. 6195
• Status: Published

Opinions

SHERWOOD, J.

This cause is -before us on rehearing. The original opinion will be found! in 52 S. D. 264, 217 N. W. 184, to which reference is made for a statement of the facts in the case. A rehearing was granted on appellant’s contention that the complaint stated a cause of action on a policy of life insurance providing for quartely payments. That respondent was bound by that allegation and cannot now be heard to say the policy in suit contained an acknowledgment of the payment of an annual premium-, receipt of which appellant could not deny by any subsequent clause contained in its policy. It may be conceded that an admission made in the complaint cannot later be denied by plaintiff. The authorities cited by appellant do not apply to the facts in this case. Here there was no allegation in the complaint that the policy of insurance did not contain an acknowledgment of the receipt of the first year’s premium.

When the policy was received in evidence it showed the acknowledgment of such a receipt. The appellant drew the policy of insurance and placed that acknowledgment therein. Appellant sought to change the effect of the acknowledgment by inserting at the foot of the policy a stipulation which would render the policy not binding unless a second premium- was paid within the year for which he had acknowledged payment of the full premium; in other words, when the policy was received in evidence it contained an acknowledgment or a receipt for a year’s premium. It also- contained a subsequent clause which would malee the policy void three months after its issue, if another quarterly premium was not paid. Section 1421, R. C. 1919, declared what the effect of such an acknowledgment and such a subsequent stipulation should be.

Section 1421, R. C. 1919, is both a rüle of evidence and a rule of construction applicable to all policies of insurance. If appellant was misled it was ¡by a clause in the policy placed, there by itself. Respondent was not responsible for this acknowledgment or receipt remaining in the policy.

As before stated, respondent did not plead that an acknowledgment of a year’s premium was not contained in the policy. He was not bound by his pleading not to take advantage of this provision in the policy.

Appellant contends a new trial should be granted to permit him to introduce additional evidence. No evidence appellant could offer could possibly remove this acknowledgment of the payment of one year’s premium now contained in the policy or change the fact that by a subsequent stipulation in the policy it had attempted to make the policy void within the first year, providing the second quarterly installment was not paid.

It is doubtless true that substantially all the evidence offered other than the policy itself was largely directed to the alleged waiver also claimed by respondent, "but this did not preclude respondent from taking advantage of an acknowledgment or receipt placed in the policy by appellant.

It is conceded that the effect of this acknowledgment or receipt was an issue before the trial court, and was presented and argued to the trial court on the motion for new trial, and it is one of the two questions presented to this court by the briefs on the appeal.

As this issue was before the trial court and was presented and argued on the motion for a new trial, we do not think a new trial should be granted on the ground that it was not the main issue presented or argued to the lower court. In our former opinion we said: . '

“It should be observed that section 1421, supra, does not apply to the intent of the parties or the construction the court may place-upon the contract.”

We desire to withdraw that statement from our opinion and substitute for it the statement heretofore made in this opinion as follows:

Section 1421, R. C. 1919, is both a rule of evidence and a rule of construction applicable to all policies of. insurance.

With this, modification the original opinion is adhered to.

FOLREY, J., concurs. ■CAMPBEEE, J., concurs in result. BROWN, J., dissents.