Fireman's Fund Ins. Co. of San Francisco v. Dunn

• Decision Date: 15 March 1899
• Citation: 22 Ind.App. 332,53 N.E. 251
• Parties: FIREMAN'S FUND INS. CO. OF SAN FRANCISCO, CAL., v. DUNN.
• Court: Indiana Appellate Court

22 Ind.App. 332

53 N.E. 251

FIREMAN'S FUND INS. CO. OF SAN FRANCISCO, CAL.,

v.DUNN.¹

Appellate Court of Indiana.

March 15, 1899.

Appeal from circuit court, Delaware county; George H. Koonts, Judge.

Action by Verrella J. Dunn against the Fireman's Fund Insurance Company of San Francisco, Cal. From a judgment for plaintiff, defendant appeals. Reversed.

Ryan & Thompson and Thomas Bates, for appellant. O. N. Cranor, for appellee.

COMSTOCK, J.

Appellee brought this action against appellant upon an insurance policy to recover damages occasioned by fire. A demurrer was overruled to an amended complaint. Appellant answered in three paragraphs. Without demurring to either of them, appellee replied to the third. A demurrer to the reply was overruled. Upon proper request, under direction of the court, the jury returned a special verdict, upon which appellant and appellee each moved for judgment. The court sustained appellee's motion for judgment, and overruled appellant's motions for judgment and for a new trial. For errors, appellant assigns the action of the court (1) in overruling the demurrer to the amended complaint; (2) in overruling demurrer to appellee's reply; (3 and 4) in overruling appellant's motion for judgment on the special verdict; (5) in overruling appellant's motion for a new trial.

The first objection urged to the complaint is that it avers that the property burned belonged to appellee, while the complaint declared upon a policy to insure W. H. Dunn's property. One provision of the policy (which is made a part of the complaint) reads as follows: “If the interest of the assured in the property, at or after the date of the policy, be any other than the entire unconditional and sole ownership of the property for the use and benefit of the assured, etc., it must be so represented to the company, and so expressed in the written part of this policy; otherwise, the policy shall be void.” It is contended that the judgment was obtained upon the policy without being reformed, and therefore upon a void policy.

The complaint avers that appellee was, on the 22d day of December, 1892, and ever since has been, the owner of the property burned; “that said defendant, at said date, in consideration of the sum of $6.30 paid to the defendant by the plaintiff as a premium, executed and delivered to plaintiff a policy of insurance, a copy of which is hereto attached, marked ‘Exhibit A,’ and made a part hereof. * * * Plaintiff further avers that, in the writing of the policy of insurance herein sued on, plaintiff's name was, through inadvertence and mistake and error of John C. Eiler, the defendant's agent, improperly written or omitted, and in place thereof W. H. Dunn was written by said agent; that it was the intention of both parties thereto to issue said policy in the name and for the sole benefit of plaintiff, in case of fire; that when said mistake was discovered, and on the 23d day of May, 1893, said agent, by indorsement of said policy and by the consent and authority of the defendant, corrected said mistake, which said indorsement is filed herewith, marked ‘Exhibit B,’ and made a part hereof.” The prayer of the complaint is that the policy be reformed by striking out of the places thereof, wherever it appears, the name of W. H. Dunn, and inserting in place thereof Verrella J. Dunn, and for judgment thereon in the sum of $1,000.

It thus appears that the property was owned by appellee at the time of the insurance and at the time of the fire; that she paid the premium; that the policy was delivered to her; that the agent of the company, by mistake, did not write her name in the policy, but instead inserted W. H. Dunn, contrary to the intention of the parties thereto, it being the intention of both parties to issue the policy in the name of appellee and for her sole benefit. W. H. Dunn, so far as the averments of the complaint showed, did not own the property, and did not pay the premium. The policy was not delivered to him. He was not a party to it. It does not appear that he had any knowledge of its existence, nor that there was such a person as W. H. Dunn, except from the indorsement on the policy made to correct the alleged error. Exhibit B of the complaint, which is the indorsement on the policy, is as follows: “The property covered in this policy at the time of issue was in the name of Verrella J. Dunn, and by error issued to W. H. Dunn, her husband. This policy is hereby made payable to Verrella J. Dunn. May 13, 1893. John C. Eiler, Agent.” Were there any doubt as to the sufficiency of the averments to show a mutual mistake, that doubt is removed by the indorsement of the agent, which, it is averred, was made by the authority of the defendant company. The parties in interest, by agreement, correct a mistake; the correction itself is an admission of the error. The claim that a valid judgment could not be rendered without an assignment of the policy to appellee, or without reforming the policy, cannot be maintained; for, under the averments, no one but the company and appellee had any interest in the policy to assign, and they had themselves reformed it. An error in an insurance policy may be as readily corrected by agreement of the parties in interest as an error in any other contract. Appellant's counsel attach importance to the fact, as they claim it to be, that it is not averred when the mistake was discovered; that, if the policy was accepted with knowledge of the mistake, she could not now be heard to complain of it. There is a lack of definiteness in the statement in reference to the date of the discovery of the error, but that is not material, in view of the conduct of appellant in admitting and correcting the error.

The complaint, in the light of all of its averments, does not show an attempt to enter into a contract with W. H. Dunn, as contended, and the claim that the policy is therefore void, by reason of the condition of the policy hertofore set out, is not well founded.

It may be conceded that there is an inconsistency in setting up facts showing a correction of the policy and in the prayer of the complaint asking for its reformation. It also asks for judgment for the loss occasioned by the fire. If entitled to have either prayer granted, the complaint is not bad for asking more than is necessary to proper relief. Bunch v. Grave, 111 Ind. 357, 12 N. E. 514. The contract of insurance is personal, but there can be no contract without the meeting of the minds of the contracting parties. There was no intention to enter into a contract with W. H. Dunn. There was a meeting of the minds of appellee and appellant, but, by mistake, an error was made in the name of one of the parties in reducing the contract to writing. This error was subsequently corrected. The demurrer to the complaint was properly overruled.

The third paragraph of answer, to which appellee replied, sets out substantially the conditions of the policy as to ownership and title, and avers that, after the policy was issued, appellee conveyed the property by deed of general warranty. Appellee's reply to this paragraph admits that, after the issuing of the policy in suit and before the time of the fire, she made and caused to be recorded in the...