Johnson v. National Mut. Ins. Co. of District of Columbia

• Decision Date: 10 January 1939
• Docket Number: 13.
• Parties: JOHNSON v. NATIONAL MUT. INS. CO. OF DISTRICT OF COLUMBIA.
• Court: Maryland Court of Appeals

3 A.2d 460

175 Md. 543

JOHNSON v. NATIONAL MUT. INS. CO. OF DISTRICT OF COLUMBIA.

No. 13.

Court of Appeals of Maryland

January 10, 1939

Appeal from Circuit Court of Baltimore City; Samuel K. Dennis Judge.

Action by Henry Johnson against the National Mutual Insurance Company of the District of Columbia, for the reformation of a liability policy. From a decree for defendant, plaintiff appeals.

Affirmed.

William Saxon, of Baltimore (Levin & Hendelberg, of Baltimore, on the brief), for appellant.

James J. Lindsay, of Baltimore (Charles D. Harris, of Baltimore, on the brief), for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, and JOHNSON, JJ.

JOHNSON Judge.

Henry Johnson, the appellant, filed his bill of complaint in the Circuit Court of Baltimore City for the reformation of a policy issued by the appellee, insuring him against liability for personal injury and property damage. He alleged that a mutual mistake had been made, in that one of four automobile trucks mentioned therein was not owned by him when the policy was issued, but had been previously replaced by a 1928 Graham-Dodge Truck, which was involved in two accidents, one having occurred August 31 and the other on September 6, 1936 while operated by his agents; separate suits which were instituted against him as a result of said accidents not having been defended by the appellee after notice terminated in favor of plaintiffs therein. The relief sought in the present case is (a) for a reformation of the policy as of its effective date, August 15, 1936, by eliminating the 1928 Dodge Truck with motor and serial numbers therein specified and substituting therefor the 1928 Graham-Dodge Truck identified by certain motor and serial numbers, and (b) that the appellee be required to pay said two judgments and costs together with plaintiff's attorney fees. The defendant's answer denied the material averments of the bill and testimony was heard by the Chancellor who found no facts to support plaintiff's contention that the defendant had at any time intended to insure the Graham-Dodge Truck and accordingly dismissed the bill of complaint. From that decree the present appeal is taken.

The facts are reasonably free from dispute and show that Johnson owned and operated four trucks prior to August 15, 1936, and had theretofore carried property damage and public liability insurance upon them with the Central Mutual Insurance Company. The policy was at that time expiring and the owner asked his insurance agent, Davis, to have the trucks insured under a new policy. His agent, or the clerk of the agent, called Lowndes & Lowndes, agents for appellee, who agreed to write a new policy of insurance for the owner. At that time the agents for appellee did not know Johnson, neither did they have knowledge of the number of trucks he owned nor their make, except as told by Johnson's agent or the clerk of the latter. Davis, in giving directions to Lowndes & Lowndes as to the description of each of the four trucks to be covered, relied upon the description contained in the old policy issued by Central Mutual Insurance Company and using that policy as a memorandum read to Lowndes & Lowndes over the telephone the name of four trucks, together with the motor and serial numbers of each. The descriptions which he read to Lowndes & Lowndes were by them correctly incorporated in the policy in controversy which was executed and delivered on August 16, 1936.

Shortly after the accident of August 31, 1936, Johnson made claim under the policy against the defendant, which denied liability because the truck involved was not covered by the policy. It was then discovered that the truck involved in that accident was not one of the four trucks covered by the policy, but was a one ton Graham-Dodge Truck which Johnson had obtained during the life of the Central Mutual policy. He had at the same time disposed of a 1928 one and one-half ton Dodge Truck which was originally insured by the Central Mutual policy, and after acquiring the fifth truck the Central Mutual Company...