Kelly v. Liverpool & London & Globe Ins. Co.

• Decision Date: 27 January 1905
• Citation: 94 Minn. 141,102 N.W. 380
• Court: Minnesota Supreme Court
• Parties: KELLY et al. v. LIVERPOOL & LONDON & GLOBE INS. CO.

94 Minn. 141

102 N.W. 380

KELLY et al.

v.LIVERPOOL & LONDON & GLOBE INS. CO.

Supreme Court of Minnesota.

Jan. 27, 1905.

Appeal from District Court, Scott County; Francis Cadwell, Judge.

Action by John F. Kelly and Norman Fetter, trustees, against the Liverpool & London & Globe Insurance Company. A demurrer to the complaint was overruled, and defendant appeals. Affirmed.

Syllabus by the Court

1. The arbitration provided for by the Minnesota standard form of insurance policy in case the parties are unable to agree as to the amount of the loss thereunder is not a condition precedent to the right of action on the policy, unless a controversy between the parties as to the amount of the loss in fact exists; and it is unnecessary, in the absence of a controversy on that subject, to allege in the complaint in an action upon such a policy that an arbitration was or was not had, or was waived by the insurance company. M. H. Boutelle, for appellant.

Harris Richardson, for respondents.

BROWN, J.

Action to reform and recover upon a policy of fire insurance. Defendant interposed a general demurrer to the complaint, which was overruled by the trial court, and this appeal was taken.

The complaint sets out that on the 9th of April, 1903, the defendant issued to one C. H. Grafenstadt a certain policy of fire insurance, for the sum of $1,500, upon his stock of goods and merchandise, consisting of dry goods, groceries, boots and shoes, etc.; that on the 11th of October, 1903, the property, which is alleged to have been worth the sum of $14,000, was totally destroyed by fire; that thereafter, on October 13th, Grafenstadt assigned the policy of insurance to the plaintiffs in this action, who are now the owners thereof. It further alleges that, by the contract entered into at the time the policy was issued, it was understood and agreed between the parties that Grafenstadt might place other insurance upon the same property, and that, by the mutual mistake of the parties, this understanding was not incorporated in the written policy. The relief demanded is that the policy be reformed and corrected, and made to conform to the agreement made at the time the contract was entered into, and that plaintiff recover thereon the sum of $1,500, with interest-the amount of loss suffered. It is urged by defendant that the complaint fails to state a cause of action, for two reasons: (1) That it does not allege that an arbitration between the parties has ever been had respecting the amount of the loss, as provided by the policy, or that an arbitration was waived by defendant; and (2) that it states no facts showing a necessity for a reformation of the policy.

1. The complaint states but one cause of action, and that to recover upon the policy, but, to entitle them to so recover, they seek to have the policy corrected and made to conform to the contract actually entered into between the parties. While it is true that the complaint discloses no particular necessity for correcting the policy, it might become necessary that it be reformed, depending upon the defense interposed by defendant. The policy, as written, provides that it shall be void if the insured had at the time it was issued, or should at any time thereafter procure, any other contract of insurance upon the same property without the consent of the company. The property covered by the policy is alleged to...