Ritson v. Atlas Assur. Co.

• Decision Date: 01 June 1932
• Citation: 279 Mass. 385,181 N.E. 393
• Parties: RITSON et al. v. ATLAS ASSUR. CO., Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 385

181 N.E. 393

RITSON et al.

v.ATLAS ASSUR. CO., Limited.

Supreme Judicial Court of Massachusetts, Middlesex.

June 1, 1932.

Appeal from Superior Court, Middlesex County; Broadhurst, Judge.

Suit by William Ritson and another against Atlas Assurance Company, Limited. From an interlocutory decree and a final decree, dismissing the bill, plaintiffs appeal.

Affirmed.

P. B. Buzzell, of Boston, for appellants.

H. W. Cole, of Boston, for appellee.

CROSBY, J.

This is a suit in equity in qhich the plaintiffs seek to have reformed on the grounds of mutual mistake and estoppel, a certain policy of fire insurance, issued by the defendant in the name of William Ritson, under date of March 1, 1926, by the insertion therein of the name of Thomas W. Ritson as one of the persons insured under said policy.

The case was referred to a master who made the following findings of fact: The plaintiffs are tenants in common of the premises described in the policy. On February 2, 1927, there was a fire whereby the dwelling house on the premises described in the policy was damaged by fire. An action at law on the policy was brought in the names of both plaintiffs; on an appeal to this court a rescript was issued as follows: ‘Plaintiff William Ritson is given leave to amend by striking out the name of Thomas W. Ritson. If this is done within thirty days from the date of rescript, the order dismissing the report is to be reversed and a new trial ordered limited to the question of damages. If the amendment is not made, the order dismissing the report is to be reversed and judgment entered for the defendant.’ 272 Mass. 73, 171 N. E. 448, 450. Prior to March 1, 1926, one Messenger approached the plaintiffs and solicited fire insurance covering the premises in question. Messenger had known the plaintiffs for some time and had sold them other insurance. He was a duly licensed insurance broker and after receiving the order from the plaintiffs ‘had a right to broker the insurance with any company capable of writing it.’ He knew that the plaintiffs owned the premises as tenants in common, that they kept their funds in a joint bank account, and that they intended the policy should be issued in the names of both plaintiffs, and should cover the interest of both in the premises in question. He also intended that the policy should be so issued. Messenger gave the order for insurance to one Kingman, president of the L. W. Kingman Company, which was an authorized agent of the defendant. Both the order slip and the policy omitted the name of Thomas W. Ritson, and contained only the name of William Ritson as the insured. The policy was delivered in hand or mailed to Messenger who sent to the insured a bill for $208, the full amount of the premium, which was paid to Messenger. The latter knew at the time of the payment that it was from the joint funds of the plaintiffs. Later, the policy was turned over by Messenger to William Ritson, who never examined it, nor became aware that it did not contain the names of both plaintiffs until after a fire occurred.

The master further found that both parties to the contract intended that the policy should insure a full interest in the property, but that the defendant at no time before the loss had any knowledge that Thomas had any interest in the property except in so far as knowledge on the part of Messenger might be deemed knowledge on the part of the defendant, and except in so far as may be inferred as matter of law from the facts found; that if the name of Thomas W. Ritson had been mentioned to the Kingman company a policy would have been issued in both names. He states that ‘Although some evidence was introduced tending to show that the home office of the respondent company might have rejected the risk and might later have cancelled the policy prior to the loss, there is no evidence justifying such a finding and I do not find that the risk would have been rejected, or the policy later cancelled if the name of Thomas William Ritson had been transmitted to the home office of the respondent company as co-insured with the complainant William Ritson.’ On July 24, 1926, Messenger was duly appointed and licensed as an agent of the defendant company. He continued to have the same knowledge with respect to the ownership of the property by both plaintiffs, and of their intention to have the policy issued in the names of both, which he had when it was issued. His agency, however, was one to solicit insurance for the defendant.

The master's report contains among others the following recitals: (1) ‘I do not find that the policy in suit was issued in the name of William Ritson alone as a result of a mutual mistake, but was so issued solely on account of the error or inadvertence on the part of the broker Messenger,’ and (2) ‘there can be but one conclusion, and that is that Messenger neglected to give the name of the complainant Thomas W. Ritson to Kingman at the time he placed the order for the policy and I so find.’ The plaintiffs objected to both these findings ‘on the ground that said conclusion[s] * * * [are] inconsistent with and * * * [are] not supported by the subsidiary and other findings contained in the report.’ The defendant objected to the following findings of the master: (1) ‘There is no question that the parties intended that the policy should insure a full interest in the property’; (2) ‘There is no doubt that if the name of Thomas William Ritson was mentioned to the Kingman company that a policy would have been issued in both names'; (3) ‘Although some evidence was introduced tending to show that the Home Office of the respondent company might have rejected the risk and might later have cancelled the policy prior to the loss, there is no evidence justifying such a finding and I do not find that the risk would have been rejected, or the policy later cancelled if the name of Thomas William Ritson had been transmitted to the Home Office of the respondent company as co-insured with the complainant William Ritson.’ An interlocutory decree was entered overruling the plaintiffs' exceptions, and sustaining the defendant's exceptions; as so modified the report was confirmed. A final decree was entered dismissing the bill with costs. The plaintiffs appealed from both decrees.

As the evidence is not reported the facts found by the master must stand unless mutually inconsistent and plainly wrong. Glover v. Waltham Laundry Co., 235 Mass. 330, 334, 127 N. E. 420;L. E. Fosgate Co. v. Boston Market Terminal Co., 275 Mass. 99, 175 N. E. 86. The finding that Messenger neglected to give the name of Thomas W. Ritson as an insured is not inconsistent with the other findings or plainly wrong. It does not appear that all the subsidiary facts upon which this finding is based are contained in the report. Even if it be inferred that all the facts appear in the master's report, giving this court power to draw inferences under the rule stated in Nichols v. Atherton, 250 Mass. 215, and cases cited at page 217, 145 N. E. 277, and in Anagnosti v. Almy, 252 Mass. 492, 500, 501, 147 N. E. 854, it is manifest that Messenger failed to give Thomas W. Ritson's name to the defendant's agent. The finding that the parties intended the policy should insure a full interest in the property, if properly interpreted, was a rational and correct inference. This finding means that both partie...