Fountain v. Standard Fire Insurance

Weaver, J. The plaintiff held a policy of insurance issued by defendant upon a certain business building which she owned in Jefferson, S. D. The building was destroyed by fire during the period covered by the policy, and this action is brought to recover the damages so sustained. By its answer the defendant alleges that plaintiff wholly failed to give to it any notice of her alleged loss as provided by law and the stipulations of the policy. It further alleges that by the terms of the policy the loss, if any was not to become due or payable until forty days after notice and proofs thereof had been given to the defendant, and that no such notice or proofs had ever been furnished. It further alleges that, before said loss by fire, the policy had been forfeited by several violations of its conditions on part of plaintiff, in that plaintiff had procured additional insurance on the building without defendant’s consent, and had permitted said property to be sold under execution. After the filing of the answer, plaintiff amended her petition, alleging that by mistake a provision allowing her to obtain other concurrent insurance had been omitted from the policy, and asking that the contract be reformed accordingly. She also alleged that defendant had waived all objections to her alleged violations of the terms of the policy. The contest upon the trial of these issues centered very largely upon the defense based on lack of due notice and proofs of loss, and upon the procurement of additional insurance on the building without defendant’s consent. As the last defense, if sustained, will defeat a recovery by plaintiff and render unnecessary any discussion upon other issues, we give it first attention. The stipulation of the policy is that it "shall be void [98] if the insured now has or shall hereafter procure any other contract of insurance on the property” covered by such policy except as the same may otherwise be provided by agreement. It is conceded that at the date of this contract plaintiff did hold two other existing policies of insurance on the same property, one for the sum of $4,000 and the other for $2,600. There is some testimony tending to show that Pierce, the agent, had knowledge of the policy for $4,000 when he issued the one in suit, but there is nothing indicating any knowledge or notice of the one for $2,600. This fact must prove an insuperable obstacle to a recovery in this case, unless the same is removed by another provision of the policy, which consists of a printed clause reading as follows: “It is agreed that the insured may obtain $- additional insurance in companies authorized to do business in the state of Iowa” — the blank above indicated not being filled. This, appellant contends, authorized additional insurance to an unlimited amount, and such it is said was the view taken by the trial court. The only evidence of such holding is in the statement contained in the abstract that the court declined to consider the cross-petition for a reformation of the policy, because in its view the clause to which we have referred opened the door to additional insurance without limit, and no reformation of the policy was needed for that purpose. This at best is but the statement of the court’s reason for its ruling, and does not become the law. of the case. In our judgment the evidence failed to make a case on which any reformation could properly be ordered, and the court’s suggestion of any other reason for denying the relief is immaterial. It is an elementary proposition that the suggestion of a wrong reason for a correct ruling by the trial court is not binding either upon the reviewing court or upon the parties. We are of the opinion that the act of the parties in leaving the blank unfilled is not to be construed as giving [99] the plaintiff the privilege of unlimited additional insurance. Its effect is rather to leave this clause without effect or force of any kind. It is as if the clause had been omitted entirely from the policy. Miller v. Insurance Co. (S. D.) 128 N. W. 609. The defendant is therefore entitled to rely upon the violation of the stipulation against additional insurance as a defense to the action, and the record discloses nothing whatever which would justify a verdict that -the forfeiture resulting from such violation had been waived. As a recovery under such circumstances cQuld not be sustained, there was no prejudical error in directing a verdict for the ■ defendant. It follows the judgment below must be affirmed.