Pipan v. Ætna Ins. Co.
| Decision Date | 16 August 1927 |
| Docket Number | No. 5174.,5174. |
| Citation | 55 N.D. 585,214 N.W. 901 |
| Parties | PIPAN v. ÆTNA INS. CO. |
| Court | North Dakota Supreme Court |
In an action to recover insurance, where a policy had been issued upon property described as belonging to the plaintiff's husband, in whose name the policy was issued, and where the complaint alleged that the policy, through mistake, had been so issued and asked that the same be reformed “if reformation is necessary,” the complaint is construed and held to state a cause of action upon a written policy of insurance and not upon an oral contract to insure or an oral contract of insurance.
Though there be no necessity for maintaining a separate suit in equity for the reformation of a policy of insurance before bringing an action to recover the insurance, nevertheless, where the pleading presents issues of fact upon which preliminary specific equitable relief depends, it is proper practice for the court to first determine such equitable issues, and, where such determination, being adverse to the plaintiff, is conclusive against the cause of action, the cause may properly be dismissed.
The evidence is examined and held not to warrant overturning the findings of the trial court concerning the issue of mutual mistake.
Appeal from District Court, McHenry County; C. W. Buttz, Judge.
Action by Antonia Pipan against the Ætna Insurance Company. From a judgment of dismissal, plaintiff appeals. Affirmed.S. P. Rigler, of Hebron, and Jacobsen & Murray, of Mott, for appellant.
Lawrence, Murphy & Nilles, of Fargo, for respondent.
[1] This is an appeal from a judgment in favor of the defendant dismissing an action upon an insurance policy The case was tried to the court and a jury. At the conclusion of the trial it was thought that the case presented both equitable issues triable to the court without a jury and issues of fact triable to the jury. The court deemed the equitable issues decisive in favor of the defendant and ordered a judgment of dismissal. The pleadings will be referred to for an understanding of the nature of the case. Omitting formal allegations, the complaint alleges that the plaintiff was the owner of a certain building in the city of Towner, together with blacksmith tools, accessories, and raw materials situated therein; that Frank Pipan was the husband and agent of the plaintiff, authorized to transact the business of insuring the property for her; that one Berget was the authorized agent of the defendant company, empowered to deliver insurance policies for the defendant; that Frank Pipan and Berget negotiated for fire insurance upon the property in question, Pipan correctly informing Berget of all facts, including the fact of the plaintiff's ownership of the property and that the plaintiff desired the insurance; that Berget examined the property and informed Frank Pipan that he would deliver the policy in accordance with their understanding and agreement insuring the property of the plaintiff for $2,000; that subsequently, on April 12, 1923, in consideration of the payment of the premium by the plaintiff to the defendant, the defendant made its policy insuring the plaintiff from that day; that Berget, through error, mistakenly inserted in the policy as the insured the name of Frank Pipan instead of the plaintiff's name; that this name was inserted without any fault of the plaintiff or her agent; that upon delivery of the policy to Frank Pipan he had it folded up and informed Pipan that it was made in conformity with the oral negotiations; that neither the plaintiff nor her agent discovered the error until after the loss and fire; that the plaintiff and Frank Pipan at all times believed that the former's name was in the policy as the insured; that neither the plaintiff nor her husband can read or write the English language; that she was unable to ascertain the contents of the policy; that she relied upon representations made to her through her husband that the insurance was made out in her name and for her benefit. The facts concerning the loss, the fulfillment of the conditions, and the failure to pay are set forth. The complaint contains the following clause by way of indicating the relief sought:
“That said policy should now be reformed to conform to the intent and agreement of the parties and that it be deemed that for the purpose of this action, it be deemed, taken, construed and considered, that the plaintiff is described in the policy as the insured instead of Frank Pipan.”
In addition to this clause the first paragraph of the prayer for relief is: “(1) That the policy of insurance be reformed to show the name of the plaintiff as insured instead of Frank Pipan, if reformation is necessary”-the second paragraph being the usual prayer for a money judgment.
At the trial there was substantial evidence in support of the allegations in the complaint. This evidence, however, was disputed by the testimony of witnesses for the defendant. According to the defendant's version of the transaction, the name of Frank Pipan was intentionally inserted as owner of the property in the belief that he was such owner. The testimony in support of this version would establish that there was not a mutual mistake in issuing the policy as it was issued. The trial court took this view of the matter and decided the issue of mistake, upon which reformation would depend, in favor of the defendant. Having thus determined that the contract as evidenced by the policy was the real contract of the parties and that the plaintiff was not a party thereto and not entitled to recover thereon, a judgment of dismissal was entered. Upon this appeal the plaintiff and appellant assails the judgment of dismissal, contending that, if the facts be as testified by the plaintiff's witnesses, a valid contract of insurance was made whereby the plaintiff's property was insured, regardless of the fact that the policy was issued in the name of the plaintiff's husband. It is contended that the plaintiff may recover upon that contract of insurance, if such be proved,...
To continue reading
Request your trial