French v. State Farmers' Mut. Hail Ins. Co.
| Decision Date | 02 February 1915 |
| Docket Number | 1905 |
| Citation | 151 N.W. 7,29 N.D. 426 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Walsh County, Kneeshaw, J defendant appeals.
Affirmed.
H. R Turner, for appellant.
There were mistakes made in the contract of insurance. As to whether an action can be maintained at law on the policy without first having had a reformation, the practice differs in different jurisdictions. Some courts hold there must be a reformation before there can be an action at law. 19 Cyc 654; Taylor v. Glens Falls Ins. Co. 44 Fla. 273, 32 So. 887; Collins v. St Paul F. & M. Ins. Co. 44 Minn. 440, 46 N.W. 906; Sun Ins. Co. v. Greenville Bldg. & L. Asso. 58 N.J.L. 367, 33 A. 962; Landers v. Cooper 115 N.Y. 279, 5 L.R.A. 638, 12 Am. St. Rep. 801, 22 N.E. 212.
Extrinsic evidence which goes beyond the purpose of aiding in the interpretation of the written contract, and which tends to show that the subject thereof was different from that described in the written contract, while it might tend to establish a case for the reformation of the contract, would be inadmissible to sustain an action to enforce the contract as written, as though it applied to the property intended to be covered, but not described in the policy. Johnson v. Dakota F. & M. Ins. Co. 1 N.D. 167, 45 N.W. 799; Landers v. Cooper, 115 N.Y. 279, 5 L.R.A. 638, 12 Am. St. Rep. 801, 22 N.E. 213.
If there is any remedy against the company for the mistake or carelessness of the agent, it is not available in an action to enforce a contract relating to one subject, as if it were a contract relating to another subject. Landers v. Cooper, supra; Collins v. St. Paul F. & M. Ins. Co. 44 Minn. 440, 46 N.W. 906.
It is clearly established under the law that no action at law can be founded upon such a policy of insurance. Sun Ins. Co. v. Greenville Bldg. & L. Asso. 58 N.J.L. 367, 33 A. 962; Connecticut F. Ins. Co. v. Kinne, 77 Mich. 231, 18 Am. St. Rep. 398, 43 N.W. 872; Taylor v. Glens Falls Ins. Co. 44 Fla. 273, 32 So. 887; Wood, Ins. § 95; Holmes v. Charlestown Mut. F. Ins. Co. 10 Met. 211, 43 Am. Dec. 528; Ewer v. Washington Ins. Co. 16 Pick. 502, 28 Am. Dec. 258.
It was the plaintiff's duty to have taken steps at once upon receiving the policy to have the same corrected or rescinded. He was and is chargeable with full knowledge of its contents. Johnson v. Dakota F. & M. Ins. Co. 1 N.D. 182, 45 N.W. 799.
The court in its discretion has the extraordinary power, even after judgment, to allow a pleading to be amended by inserting new allegations material to the case; but this power should be sparingly exercised. 1 Sutherland, Code Pl. § 796.
One will not be allowed to amend his pleading to conform to proof, where objection was made to the evidence to cover which the amendment is desired. Wheaton v. Voorhies, 53 How. Pr. 319; Mendenhall v. Harrisburg Water Power Co. 27 Ore. 38, 39 P. 399; Eikenberry v. Edwards, 67 Iowa 14, 24 N.W. 570; Maxwell v. Day, 45 Ind. 509; Carpenter v. Huffsteller, 87 N.C. 273; Allen v. Brooks, 88 Wis. 265, 60 N.W. 253; Sanford v. American Dist. Teleg. Co. 13 Misc. 88, 34 N.Y.S. 144.
Where the proposed amendment materially changes the cause as originally pleaded and on which issue was joined, it cannot be allowed. Mares v. Wormington, 8 N.D. 329, 79 N.W. 441; Woodward v. Northern P. R. Co. 16 N.D. 39, 111 N.W. 627; Taugher v. Northern P. R. Co. 21 N.D. 111, 129 N.W. 750; Cooke v. Northern P. R. Co. 22 N.D. 266, 133 N.W. 306.
A new and distinct cause of action cannot be thrust into a complaint by amendment. Cooke v. Northern P. R. Co. supra.
Where both equitable and legal relief is sought, the equity action must be first and separately tried. 34 Cyc. 992; Cotton v. Butterfield, 14 N.D. 465, 105 N.W. 237; Arnett v. Smith, 11 N.D. 55, 88 N.W. 1037; Estrada v. Murphy, 19 Cal. 272; Lombard v. Cowham, 34 Wis. 486; DuPont v. Davis, 35 Wis. 631; Laffy v. Gordon, 15 N.D. 282, 107 N.W. 970.
H. C. DePuy, for respondent.
A person who takes and writes out an application for insurance and same is signed by the insured, and such application is accepted by the company and the policy issued pursuant thereto, is the agent of the company, and not of the insured. 19 Cyc. 826-829; 28 Century Dig. Col. 3015; Kausal v. Minnesota Farmers' Mut. F. Ins. Asso. 31 Minn. 17, 47 Am. Rep. 776, 16 N.W. 430; Norman v. Kelso Farmers' Mut. F. Ins. Co. 114 Minn. 49, 130 N.W. 13; Smith v. Continental Ins. Co. 6 Dak. 433, 43 N.W. 811; Leisen v. St. Paul F. & M. Ins. Co. 20 N.D. 316, 30 L.R.A. (N.S.) 539, 127 N.W. 840; Whitney v. National Masonic Acci. Asso. 57 Minn. 472, 59 N.W. 943; Pudritzky v. Supreme Lodge, K. H. 76 Mich. 428, 43 N.W. 373; Johnson v. Dakota F. & M. Ins. Co. 1 N.D. 167, 45 N.W. 799; Erickson v. Ladies of Maccabees, 25 S.D. 183, 126 N.W. 262; Parno v. Iowa Merchants' Mut. Ins. Co. 114 Iowa 132, 86 N.W. 211; Key v. Des Moines Ins. Co. 77 Iowa 174, 41 N.W. 614; Stone v. Hawkeye Ins. Co. 68 Iowa 737, 56 Am. Rep. 870, 28 N.W. 47; Siltz v. Hawkeye Ins. Co. 71 Iowa 710, 29 N.W. 605; Kansas Farmers' F. Ins. Co. v. Saindon, 52 Kan. 486, 39 Am. St. Rep. 356, 35 P. 15.
The rule is the same with regard to mutual as well as stock companies. Kausal v. Minnesota Farmers' Mut. F. Ins. Asso. 31 Minn. 17, 47 Am. Rep. 776, 16 N.W. 430; Leisen v. St. Paul F. & M. Ins. Co. 6 Dak. 433, 43 N.W. 811; Norman v. Kelso Farmers' Mut. F. Ins. Co. 114 Minn. 49, 130 N.W. 13; Whitney v. National Masonic Acci. Asso. 57 Minn. 472, 59 N.W. 943.
The mistake made in the contract of insurance did not go to the question of consideration for the note. It did not affect the maker's liability on the note. Phenix Ins. Co. v. Gebhart, 32 Neb. 144, 49 N.W. 333; Johnson v. Dakota F. & M. Ins. Co. 1 N.D. 167, 45 N.W. 799.
Whether insured was guilty of laches for not discovering a mistake in the policy, and in not seeking to have it corrected before loss and suit brought thereon, is a question for the jury. Delaware Ins. Co. v. Hill,-- Tex. Civ. App.--, 127 S.W. 283; Norman v. Kelso Farmers' Mut. F. Ins. Co. 114 Minn. 49, 130 N.W. 13.
For a court to entertain an action to reform a contract, the errors and mistakes of which complaint might be made, must be mutual. Such element is lacking in this case. State Ins. Co. v. Schreck, 27 Neb. 527, 6 L.R.A. 524, 20 Am. St. Rep. 696, 43 N.W. 341; Kansas Farmers' F. Ins. Co. v. Saindon, 52 Kan. 486, 39 Am. St. Rep. 356, 35 P. 15; Hearsh v. German Ins. Co. 130 Mo.App. 457, 110 S.W. 23; Maher v. Hibernia Ins. Co. 67 N.Y. 283; Phenix Ins. Co. v. Geehart, 32 Neb. 144, 49 N.W. 333; Smith v. Commonwealth Ins. Co. 49 Wis. 322, 5 N.W. 807; Germania L. Ins. Co. v. Lunkenheimer, 127 Ind. 536, 26 N.E. 1082; Eggleston v. Council Bluffs Ins. Co. 65 Iowa 308, 21 N.W. 652; Deitz v. Providence Washington Ins. Co. 31 W.Va. 851, 13 Am. St. Rep. 909, 8 S.E. 616; Lumberman's Mut. Ins. Co. v. Bell, 166 Ill. 400, 57 Am. St. Rep. 140, 45 N.E. 130; Hobkirk v. Phoenix Ins. Co. 102 Wis. 13, 78 N.W. 160; Carey v. Home Ins. Co. 97 Iowa 619, 66 N.W. 921; Walrath v. Royal Ins. Co. 16 Ohio C. C. 413, 9 Ohio C. D. 233; AEtna Ins. Co. v. Brannon, 99 Tex. 391, 2 L.R.A. (N.S.) 548, 89 S.W. 1057, 13 Ann. Cas. 1020; 19 Cyc. 654, note 4; 28 Century Dig. Col. 818; 11 Decen. Dig. 189.
The contract may be enforced in an action at law, where the facts as to the mistake are fully pleaded. The plaintiff is not first driven to a court of equity. May, Ins. 872, 566; American Cent. Ins. Co. v. McLanathan, 11 Kan. 533; 1 Greenl. Ev. 300, 302; Loomis v. Jackson, 19 Johns. 449; 2 Hilliard, Real Prop. 358, 368; Boardman v. Reed, 6 Pet. 340, 8 L.Ed. 420; Manhattan Ins. Co. v. Webster, 59 Pa. 227, 98 Am. Dec. 332; Mumper v. Kelley, 43 Kan. 256, 23 P. 558; State Ins. Co. v. Sihreck, 27 Neb. 527, 6 L.R.A. 524, 20 Am. St. Rep. 696, 43 N.W. 344; Phenix Ins. Co. v. Gebhart, 32 Neb. 144, 49 N.W. 333.
Where, as in this state, the court exercises the functions of law and equity, it may, where there is an answer, grant any relief consistent with the facts alleged, and the prayer for relief may be amended accordingly at any time. 31 Cyc. 110 and cases cited on page 111; Rev. Codes, 1905, 7073; Maher v. Hibernia Ins. Co. 67 N.Y. 283; Getty v. Hudson River R. Co. 6 How. Pr. 269; Walsh v. McKeen, 75 Cal. 519, 17 P. 673; Esch Bros. v. Home Ins. Co. 78 Iowa 334, 16 Am. St. Rep. 443, 43 N.W. 229; Holmes v. Campbell, 12 Minn. 221, Gil. 141; 31 Cyc. 438, 439, 731; 39 Century Dig. Col. 2776, 2780; Fraley v. Bentley, 1 Dak. 25, 46 N.W. 506.
Where both equitable and legal relief is sought in the same action, the parties may waive a jury, and by express or implied consent try the issues as if they were all of the same nature, and they will not be heard on appeal to urge objection to such procedure. Laffy v. Gordon, 15 N.D. 282, 107 N.W. 969.
There is no dispute about the facts in this case.
The testimony consists solely of certain documentary evidence and the oral testimony of the plaintiff and of one Colette, an agent for the defendant. The plaintiff is a farmer residing on section 17, in township 157, range 51, in Walsh county, in this state. This township is named Acton township. It is conceded that Colette was the duly authorized and licensed agent of the defendant company, authorized not only to write insurance for the defendant, but also authorized to appoint subagents. On June 27, 1912, said Colette obtained from the plaintiff an application for hail insurance with the defendant upon crops on the lands owned and occupied by plaintiff in section 17, and in the adjoining section 8 in said township. The application was prepared by Colette, who asked questions of the plaintiff, and wrote down the answers in the application,...
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