Hier v. Farmers Mut. Fire Ins. Co.

• Decision Date: 04 May 1937
• Docket Number: 7642.
• Parties: HIER v. FARMERS MUT. FIRE INS. CO.
• Court: Montana Supreme Court

67 P.2d 831

104 Mont. 471

HIER v. FARMERS MUT. FIRE INS. CO.

No. 7642.

Supreme Court of Montana

May 4, 1937

Appeal from Fifteenth District Court, Roosevelt County; John Hurly Judge.

Suit by A. S. Hier, as administrator of the estate of Roman Temmel deceased, against the Farmers Mutual Fire Insurance Company. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Frank M. Catlin, of Wolf Point, and Howard M. Lewis, of Plentywood for appellant.

J. E. Rucker and Ernest L. Walton, both of Wolf Point, for respondent.

STEWART Justice.

This is an appeal from the district court of Roosevelt county. Roman Temmel and his wife, Mary Temmel, were residents and farmers in Roosevelt county. Temmel was an Austrian and spoke the English language indifferently. He was a man of excitable character and eccentric habits, although withal industrious, frugal, and reasonably capable in business affairs. His wife had been previously married and had at least one child by that union.

The Temmels occupied certain lands which were apparently handled as a farm unit. The legal title to part of these lands stood in the name of the husband, and a part thereof stood in the name of the wife. It appears that the wife had furnished certain funds from a private source for the improvement of the land. Most of the work in clearing the land of brush, constructing buildings, and otherwise improving the farm was done by the husband. He had constructed a very good house, a barn, and several other farm buildings. These buildings, in addition to the house and barn, consisted of two cattle sheds, chicken house, bunk house, ice house, garage, shed, and granary. The latter three were apparently built together. Counting these separately, there were ten buildings. Counting the three as one building, there were eight units. The buildings were upon lands that stood in the name of Mary Temmel.

On April 5, 1930, Roman Temmel applied to the agent of the Farmers Mutual Fire Insurance Company, a local company organized for the insurance of the buildings belonging to the members of the company, for a fire insurance policy on the house and barn. The application was made to one McCracken, agent at Bainville. The usual form of application was filled out by the agent from information furnished by Temmel. The agent did not at the time go to the property and examine it but had knowledge of the buildings and knew what he was insuring. The value placed upon the house was $2,250, and the insurance taken out thereon was $1,600. The value placed on the barn was $1,000, and the insurance taken out thereon was $600. Temmel assumed to give from memory the description of the tract upon which the buildings stood, but the description so given and included in the application, and later in the policy, was not a true description of any of the lands owned by either Roman or Mary Temmel; in fact, the description was not a technical legal description of any land in that region.

The application signed by Temmel contained the following statement: "I hereby warrant, covenant and agree with said company that the foregoing is a full, just and true exposition of all facts and circumstances, conditions, situation and value of the property to be insured, so far as the same are known to me and material to the risk."

The buildings were erected very close to the line between the part of the ranch that stood in the name of Roman Temmel and the part that stood in the name of Mary Temmel. Apparently the actual location was not ascertained until after the fire, when a survey was made which disclosed their actual geographical position. Temmel was apparently under the impression that, while the buildings were close to the line, they were on the part of the ranch that stood in his name.

The policy was issued under date of April 10, 1930, and it remained in effect and premiums were paid thereon until April 8, 1934, when the insured house and barn and all of the other buildings on the place were almost entirely destroyed by fire. Temmel was present at the time of the burning and his wife was apparently there at the time the fires were started, although she left before the buildings were burned up. Neighbors rushed in and observed Temmel upon the premises. All of the buildings were burning at the same time, although they were spaced some distance apart. The first neighbor to arrive at the scene of the fire was one Hook, who proceeded there with two men who were at his home to help him move his belongings from the place he then occupied to the Temmel farm, which was about three quarters of a mile distant and upon which he had a short-term lease. About 1:30 o'clock in the afternoon Hook observed smoke rising from the Temmel place and he and his men rushed over to see if any of the property could be saved. On the way over they met Mrs. Temmel coming away from the place in an extreme state of excitement. She did not make any coherent explanation but merely said, "It's all over," or something to that effect. They proceeded to the place, but before they could do anything toward saving the property they observed Temmel on a knoll or hill a slight distance from them with a rifle. All of the buildings were burning and conditions were such that they were convinced that they had all been set on fire at about the same time. Fearing that Temmel would shoot them they withdrew and allowed the fire to progress. Later in the day a deputy sheriff and other neighbors proceeded to the place. At that time the buildings had been very largely consumed by fire.

Previous to the fire Temmel had held a sale and sold practically all his belongings, but had retained a truck and some household goods and supplies. The truck loaded with the remaining belongings of Temmel was found without the danger zone and intact. Temmel was found in a root house with a shotgun by his side. A wire and string connected the trigger of the gun to his finger. He had apparently shot himself through the lower part of the jaw and head and was dead.

The record shows that the news of the burning and suicide spread rapidly. The agent and officials of the company received knowledge of the fire within a very short time. The company made some investigation as to the matter. Officers thereof visited the scene and apparently ascertained that the buildings did not stand upon the land to which Roman Temmel had legal title but did stand upon lands to which the legal title was in the name of Mary Temmel. An attempt was made to cancel the policy on that account.

In due time an administrator was appointed. Demand was made for payment of the insurance and suit was instituted. The complaint alleged all of the usual and essential facts, including the insurance of the buildings and the complete destruction thereof by fire, and also alleged that a mutual mistake was made as to the description of the lands upon which the buildings stood. The prayer for relief contained demand for reformation of the application which was later made a part of the policy so as to make the same conform to the actual description of the lands. The specific request for reformation was as follows: "That certain words and figures be stricken from the application of the policy and others inserted, and that the answer to the question as to the title to the property be stricken and that there be inserted in lieu thereof the following: 'That the title to the above real estate is in the name of Mary Temmel, but I personally own the dwelling and barn hereby sought to be insured against loss or damage by fire or lightning."' The money judgment demanded was $2,200, the full amount of the insurance, with interest.

All available defenses were set up in the answer, including the claim that Temmel burned the buildings to obtain the insurance. Likewise the equitable defense that Temmel's estate would be enriched by the collection of the amount of the insurance, and that the Insurance Company was entitled to an equitable counterclaim for the amount thereof. The net result of the allegations of the answer was to the effect that the estate take nothing by the suit. A reply was filed admitting the burning but alleging that Temmel was insane at the time thereof. The cause proceeded to trial before a judge from an outside district called in to try the case without a jury.

The court made findings of fact and conclusions of law. The findings of fact were to the effect that Temmel died on April 8, 1934; that Hier was appointed administrator; that the burned buildings stood on land the legal title to which was in Mary Temmel; that Roman Temmel owned the buildings and burned them while insane; and that the contract of insurance should be amended and reformed to conform to the facts as pleaded in the complaint. The decree then followed ordering the reformation and awarding judgment to the estate for the full amount of the insurance. The appeal is from the judgment.

Twenty-nine assignments of error were made, but appellant defined the issues of this appeal in the following language:

"1. Was the policy of insurance invalidated by the mistake in the application therefor?

2. As the defendant alleged in its answer, and plaintiff scantily, if at all, denied in his reply, and the court determined in its findings, unappealed from, the insured burned the buildings covered by the insurance: Does this prevent plaintiff's recovery?

3. Is the insanity of the insured a defense to his incendiarism?

4. Was such insanity of plaintiff's intestate established by the proof?

(a) Was the testimony of the attending physician properly admitted, over defendant's objection?"

We have examined the assignments of error and the arguments and authorities in support thereof and in opposition thereto. We are convinced that...