Horine v. Royal Insurance Company (Ltd.) of Liverpool
| Decision Date | 11 March 1918 |
| Citation | 201 S.W. 958,199 Mo.App. 107 |
| Parties | MARY E. HORINE and R. W. HORINE, Respondents, v. THE ROYAL INSURANCE COMPANY (LIMITED) OF LIVERPOOL, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lawrence Circuit Court.--Hon. Charles L. Henson, Judge.
AFFIRMED.
Judgment affirmed.
Goad & Schmook for appellant.
H. H Bloss for respondents.
This is an action to reform a three-year term policy of fire insurance, and to recover on the policy as reformed. The circuit court, a jury being waived, reformed the policy as prayed and then gave judgment for the face value of the policy and defendant appeals.
The petition was in two counts. The first, in equity, in the name of R. W. Horine and Mary E. Horine, his wife, asks for a reformation of a policy issued September 6, 1915, by defendant to R. W. Horine, as assured in the aggregate sum of $ 2300 covering these items: $ 500 on dwelling house; $ 300 on household goods; $ 1000 on a shingle roof frame building and additions occupied and to be occupied as a private horse stable, or carriage house or barn; and $ 500 on horses and cows contained therein; all located on certain lots in Aurora, Missouri. It is alleged that when the policy was delivered to the wife she called defendant's agent's attention to the fact that the policy was written in the name of her husband whereas the title to the property was in her and that the agent replied that it would make no difference whether the title was in R. W. Horine or Mary E. Horine and that if any loss occurred it would be promptly paid; that the wife, relying on said statement and believing it to be true was induced thereby to pay to defendant the premium of $ 18.40 and was also induced thereby to not make any further effort to secure other insurance or to have said policy changed so that the name of the assured would be the same name in which the title vested; that the name of the assured in the policy "was by reason of the fault, misconduct and acts of the defendant itself incorrectly stated and given" without any fault on the part of the plaintiffs; that the title to said real estate was on September 6, 1915, and ever since has been in plaintiff wife; and that the plaintiff husband disclaims any right to the proceeds from the policy if the same shall be paid or collected in this suit or otherwise by his coplaintiff. It is then alleged that on August 4, 1916, the barn was totally destroyed by fire, and the prayer is for reformation of the policy so that the name of plaintiff wife may appear as assured.
The count at law asks for recovery in the sum of $ 1000.
The answer to the first count admitted the issuance of the policy to R. W. Horine and that Mary E. Horine was then and is now the owner of said real estate but averred that defendant had no knowledge or notice that she was the owner, or that her husband was not the owner thereof, until after the fire; that as soon as it was so advised it tendered, before suit, to plaintiffs, the premium on such policy and the one of which it was the renewal with interest from date of each policy; and it denied specifically every other allegation, denying that it made any other contract or had any other agreement or understanding with plaintiffs, or either of them than the one expressed in the policy.
The evidence as to what transpired before and at the time of the delivery of the policy in question is in irreconcilable conflict. The plaintiff's version was that the agent took it upon herself to write up the policy as it was written without any directions whatsoever from either plaintiff, and that when the agent brought the policy to the Horine home the conversation occurred which is recited in the petition and this is positively testified to by both Mary E. Horine and Alta Gatts, her daughter, whereupon the premium was paid. Both witnesses (last above mentioned) testified that when the agent delivered the policy Mary E. Horine looked at it and then asked the agent would it make any difference that the title was in her name and the policy in the name of her husband, and that the agent replied that it would not make a particle of difference because they (the husband and wife) did not do business separately. The husband was not present. Defendant's version was altogether different, being that this policy was a renewal of a policy written September 6, 1912, covering the same subject-matter, between the same parties, same amounts and all; that the husband in the wife's presence had given directions to defendant's local agent's clerk, Mrs. Oldaker, how to write the original policy, and that it was written in the name of R. W. Horine and delivered and remained in the hands of the Horines in that form during the entire three-year period; that Mrs. Oldaker went to inspect the risk before preparing the renewal policy, as required by the rules of the company, and inquired of the wife (the husband not being present) whether any change should be made in the policy in any way from the original policy and was told there was none; that the renewal policy was subsequently mailed, not delivered in person, and that no such conversation ever occurred as detailed by Mrs. Horine and her daughter, and that some time after the policy was issued Mrs. Horine came to the insurance company's office and gave her check for $ 18.40 premium. It thus appears that the testimony is in square conflict.
As stated, the husband was made a party to this suit merely for the purpose of disclaiming any interest in the loss on the barn. It is undisputed that the title was in the wife and that the policy contained several items some of which covered property owned by the husband; that is, some of the items in this policy covered property actually owned by the husband. It is admitted that the policy was merely a renewal of one that had been in force for three years in practically the same condition.
In order to reform a written instrument it is said: "Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only a certainty of error." [Sweet v. Owens, 109 Mo. 1, 7, 18 S.W. 928.] "Every presumption is in favor of the instrument as it is, and the evidence must be unequivocal to show both that an error was committed and also its precise character." [State ex rel. to use of Frank v. Frank, 51 Mo. 98, 99.] "A court of equity has jurisdiction to reform a policy of insurance, or other written contract, upon parol evidence, when the agreement really made by both parties has not been correctly incorporated into the instrument, through accident or mistake, in the framing of it; but both the agreement and the mistake must be made out by the clearest evidence, according to the understanding of both parties, as to what the contract was intended to be, and upon testimony entirely exact and satisfactory; and it must appear that the mistake consisted in not drawing up the instrument according to the agreement that was made." [Tesson v. Atlantic Mut. Ins. Co., 40 Mo. 33, 36.] The burden is upon the party asserting the mistake, and the mistake must be mutual. [Parker v. Vanhoozer, 142 Mo. 621, 627, 44 S.W. 728; see also, Aetna Life Ins. Co. v. American Zinc, L. & S. Co., 169 Mo.App. 550, 561, 154 S.W. 827; Greditzer v. Continental Ins. Co., 91 Mo.App. 534.] It is not claimed in the case at bar that there was any fraud or any misrepresentation of a material fact.
The mistake alleged, relied upon, and testified to by the plaintiff and her witness, her daughter, was the legal effect of the policy on her interest and property in such policy when written in the name of her husband, her testimony being that she called the agent's attention to the fact that the property belonged to her and that the insurance was written in her husband's name, and that the agent assured her that that insured her property.
In order for a chancellor to correct a mutual mistake where the mistake is one of fact, or one of mixed fact and law, or one existing because of a misunderstanding as to the legal effect of the language of the written instrument, the plaintiff asking for a reformation must show by clear and cogent proof that the mistake was mutual, and what the contract was which was intended between the parties and which would have been made were it not for such mistake. [Judson v. Mullinax, 145 Mo. 630, 636, 47 S.W. 565.] The evidence must be such as to leave no reasonable doubt in the mind of the court as to these points. [Hearne v. Marine Ins. Co., 20 Wall. 488, 22 L.Ed. 395; Hochstein v. Berghauser, 123 Cal. 681, 56 P. 547.] And while it is said that the mistake must be proven beyond a reasonable doubt, the courts do not generally require the degree of proof required by the criminal law. [Southard v. Curley, 134 N.Y. 148, 30 Am. St. Rep. 643, 31 N.E. 330; Wall v. Meilke, 89 Minn. 232, 94 N.W. 688.]
The rule in Missouri seems to be that the evidence must be clear cogent and convincing; and while courts of equity are not prone to get entirely away from the common-law rule that oral evidence will not be permitted to vary or alter the terms of a written instrument, and the rule that a written contract is presumed to contain the whole contract entered into by the parties, they will reform an instrument where it is apparent (bearing in mind the solemnity of the written contract and the force that goes with it) that a mistake has been made in reducing the contract to writing that the parties intended to make; and in applying the equitable rule the courts have been inclined to use stronger expressions as to the theory upon which the cases should be decided than they have practiced in deciding the...
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