Rokusek v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa.

• Decision Date: 21 September 1923
• Citation: 195 N.W. 300,50 N.D. 123
• Parties: ROKUSEK v. NATIONAL UNION FIRE INS. CO. OF PITTSBURGH, PA.
• Court: North Dakota Supreme Court

50 N.D. 123

195 N.W. 300

ROKUSEK

v.NATIONAL UNION FIRE INS. CO. OF PITTSBURGH, PA.

Supreme Court of North Dakota.

July 2, 1923.

Rehearing Denied Sept. 21, 1923.

Syllabus by the Court.

In an action to recover on a policy of crop insurance for loss sustained, held, that under sections 5825 to 5828, inclusive, Comp. Laws 1913, certain instruments set out and referred to in the opinion constitute a good accord and satisfaction of all obligations on account of such policy.

In the absence of mutual mistake, and unless induced so to do by fraud or deceit, one who deliberately signs a written contract without reading the same is concluded thereby as against the other party to such contract.

A preponderance of the evidence, taking into consideration all presumptions arising under the circumstances as shown, is sufficient to establish fraud so as to avoid a written instrument. Evidence examined, and held not to meet the requirement in this particular case.

The pleadings and record in the instant case examined, and held that the action is not an action for damages on account of fraud.

In order to rescind a contract procured by fraud, the party rescinding must restore or offer to restore to the other party the consideration moving from him, on condition that such party shall do likewise, unless the latter is unable or positively refuses to do so.

Where an oral accord is partly but not fully executed, the creditor may repudiate the same and sue upon the original obligation for any balance remaining, after crediting thereon such amounts as may have been paid upon the accord.

Under chapter 133, Laws 1921, a proper motion for a directed verdict challenges the sufficiency of the evidence and raises a question of law which may be reviewed upon appeal from the judgment without a motion for a new trial, or for judgment notwithstanding the verdict.

Appeal from District Court, Hottinger County; Frank T. Lembke, Judge.

Action by Frank Rokusek against the National Union Fire Insurance Company of Pittsburgh, Pa. From judgment for plaintiff, defendant appeals. Reversed and rendered.Sullivan, Hanley & Sullivan, of Mandan, for appellant.

Jacobsen & Murray, of Mott, for respondent.

NUESSLE, J.

This is an action to recover on account of a policy of insurance against crop failure. In his complaint, the plaintiff sets out the execution of the policy; its receipt by him, and the payment of the premium on the same; that a loss was incurred; the adjustment of such loss; that, by reason of fraud and false representations on the part of the defendant, the plaintiff entered into an agreement of accord with the defendant; the payment by the defendant and the receipt of such payment by the plaintiff of a portion of the loss claimed; the signing of a purported adjustment in full by the plaintiff; that the same was procured to be signed by and through the fraud and false representations of the defendant; that the agreement of accord in fact entered into has not been satisfied; that the moneys paid by the defendant and received by the plaintiff have been applied on account of the loss incurred, and that the plaintiff claims to recover the balance remaining unpaid.

The defendant, answering, admits the execution and delivery of the policy by it to the plaintiff and the receipt of the premium therefor; denies generally the other matters and things set out in the complaint. As affirmative defenses, the defendant pleads: That the policy was obtained through and by reason of fraud and misrepresentation on the part of the plaintiff; that, on becoming advised of such fraud and misrepresentation, the defendant denied liability under said policy and tendered a return to the plaintiff of the premium paid thereon; that said offer was refused; that, by reason of these facts, the policy became and was void, and all remedies barred thereunder; that there was a difference and dispute between the plaintiff and the defendant as to defendant's liability on account of such policy; that the plaintiff and defendant entered into an agreement of accord in settlement and adjustment of the plaintiff's claim; that such accord was thereafter fully executed and satisfied; that, in satisfaction of such accord, the plaintiff received the moneys agreed to be paid thereunder; that more than three years has elapsed since such moneys were so paid, but that plaintiff has kept and retained and has not repaid or tendered back the same, notwithstanding the fact that he became aware of all the facts and circumstances in connection with the transaction; that there was no fraud or false representations on the part of the defendant with reference to the making of the agreement of accord or the satisfaction of the same.

On the issues as thus made, the case was tried to a jury. At the close of the plaintiff's case, and again at the close of the whole case, the defendant moved for a directed verdict. In accordance with the statute, chapter 133, Laws 1921, no ruling was made upon such motions. The plaintiff had a verdict. Judgment was entered thereon. No motion for a new trial was made, nor was there any motion for judgment notwithstanding the verdict. The case is here on appeal from the judgment.

The record discloses that in June, 1917, the defendant company issued its policy of insurance against “crop failure” to the plaintiff. This policy covered certain crops owned by the plaintiff and growing upon lands in Hettinger county. The crops in question failed, and the plaintiff, on the 21st of September. 1917, filed his proof of loss for $2,753.20. The policy was written by one Heinrich, the agent of the defendant company, at Burt, N. D. Mr. Heinrich was a banker. The plaintiff did his banking business with Heinrich, and, according to his own testimony, frequently consulted him about his business affairs. In December of 1917, one Zemke, the adjuster of the defendant company, was in the vicinity of Burt, adjusting losses for the company. He had various losses to adjust, the plaintiff's among others. The plaintiff testifies that he saw and talked with Zemke regarding the loss in question, and that Zemke adjusted his loss in the full amount claimed, representing that the company was insolvent and that the most it would be able to pay was 50 cents on the dollar of the loss so adjusted; that it would pay such proportion of such loss; that the plaintiff was not satisfied and insisted upon the payment of the loss in full; that Zemke told him that, if the company paid any other of its policy holders more than 50 per cent. of his adjusted losses, the plaintiff would get the same; that the plaintiff refused to assent to such an adjustment, but stated he desired to talk with Heinrich concerning the matter; that he went to see Heinrich at Burt; that the adjuster was not there; that Heinrich told him that the settlement papers were left there; that he signed some paper there, believing that the same was an adjustment in full of his loss and a receipt for 50 per cent. thereof to be paid in cash, and that he was bound thereby only in that manner and to that extent; that such paper so signed by him was Exhibit A in the words and figures as follows:

“Final Loss Adjustment.

Know all men by these presents that a dispute having arisen between National Union Fire Insurance Company of Pittsburgh, Pa., and myself, as to the amount (if any) due and owing me from said insurance company under the terms and provisions of its policy No. 4335.

This agreement witnesseth: That for the purpose of finally settling and terminating said dispute. I agree that the sole and total amount to which I am entitled under said policy has this day been compromised, adjusted, fixed and determined, by and between said insurance company and myself, to be in the sum of thirteen hundred seventy-siv and 60/100 dollars ($1,376.60), and I hereby waive and relinquish any further claim or claims against said insurance company and agree to surrender said policy to said insurance company upon payment of said amount of $ -----. This adjustment to be subject to the approval of the president of the company.

Dated at Burt, N. D., this 4th day of December, 1917. Frank Rokusek. Assured. A. A. Zemke, as adjuster for National Union Fire Insurance Company. Witness: E. G. Heinrich.”

That thereafter he received a draft for the amount of $1,376.60; that he cashed such draft; that such draft was Exhibit B in the words and figures as follows:

“Loss Hettinger. Loss No. C453. Draft No. -----. December 11, 1917. Upon acceptance by the National Union Fire Insurance Company the Mellon National Bank, Pittsburgh, Pa., will pay to the order of Frank Rokusick, Burt, N. D. thirteen hundred seventy-six dollars sixty cents, which payment, evidenced by proper indorsement hereof, constitutes full satisfaction, compromise, and indemnity for all claims and demands for loss and damage by crop failure 1917 to property described in policy No. 4335, issued at its Burt, N. D., agency, and said policy is hereby canceled. F. E. Church. To the National Union Fire Insurance Company of Pittsburg, Pa. Claim $1,376.60. Discount, $ -----. Net, $ -----.”

That he reads and understands English fairly well, but that he did not read either the paper first signed by him, or the draft; that he had an opportunity to read such paper and was not in any way prevented from so doing, but that he did not do so, because he relied upon the statements made to him with reference to the matter by Zemke and Heinrich. On the other hand, Zemke testifies that he never saw or talked with Rokusek, the plaintiff; that the adjustment agreementwas sent to him, at Mott, from Burt, by Heinrich; that such instrument was by him sent to the head office of the company for action thereon. Heinrich, though available, was not called by either side.

This action was begun on August 22, 1921. Rokusek testifies that he brought the action as soon as he learned of the real facts and circumstances and of his right to...