Schmid v. Virginia Fire & Marine Ins. Co.

• Decision Date: 30 April 1896
• Citation: 37 S.W. 1013
• Court: Tennessee Supreme Court
• Parties: SCHMID v. VIRGINIA FIRE & MARINE INS. CO.

37 S.W. 1013

SCHMID v. VIRGINIA FIRE & MARINE INS. CO.

Court of Chancery Appeals of Tennessee.

April 30, 1896.

Appeal from chancery court, Knox county; H. B. Lindsay, Chancellor.

Bill by Cresentia Schmid, by next friend, against the Virginia Fire & Marine Insurance Company, to reform and enforce a policy of insurance. From a decree for complainant, defendant appeals. Reversed.

Webb & McClung, for appellant. T. R. Cornick, for appellee.

NEIL, J.

On the 3d day of July, 1893, the defendant insurance company issued to one Rudolph Schmid a policy of insurance upon a chicken barn. The only words that need be copied are the following: "Virginia Fire and Marine Insurance Company, in consideration * * * does insure Rudolph Schmid against such immediate loss and damage, not exceeding six hundred dollars, as may be caused by fire or by lightning between twelve o'clock noon on the 3d day of July, 1893, and 3 o'clock noon on the 3d day of July, 1896, to the following property, to wit: On his frame building used as chicken barn and addition, used by insured as office, situate on his premises on north side Clinton pike, about six miles west of Knoxville, Tennessee. 30 days allowed to complete and occupy. Which loss or damage shall in no case be held to exceed the absolute and unconditional interest of the assured in the said property. * * * That this company shall not be liable under this policy for loss or damage by fire * * * if the title or interest of the assured is less than an entire, absolute, unconditional, fee-simple ownership, unless in each event notice thereof, before loss or damage, be given in writing by the assured to the company, and it accept the same in writing herein," etc. The chicken barn was destroyed by fire January 1, 1894. Thereupon the present complainant, Mrs. Cresentia Schmid, wife of said Rudolph Schmid, filed the bill herein, alleging that the property insured belonged to her, and that by mistake her husband's name instead of her own was inserted in the policy as the assured, and prayed to have the policy reformed and enforced. The defendant denies that there was any mistake in the issuance of the policy, but admits that the property in fact belonged to the complainant, and on that ground, because of the provisions of the policy already quoted, insists that the complainant cannot recover. The chancellor decreed in favor of the complainant, and the defendant has appealed, and assigned errors.

The only question for decision is whether there was such a mistake as will furnish grounds for reformation of the instrument. The contract originated with one N. Cuquel. He was an insurance solicitor. He was in the habit of turning over such risks as he could procure to E. P. King & Co., who were insurance agents in the city of Knoxville. Mr. Cuquel, who is apparently a foreigner, and uses the English language with some degree of eccentricity, gives the following account of the transaction: "I heard Mr. Schmid was building a house to put chickens in, and went to him, and told him if he wanted some insurance on it, and he told me `Yes,' when it was built he wanted it insured. I asked him if he would give it to me, and he said, `Yes.' When I heard that the building was done, I went again to Mr. Schmid, and told him it was time to get the insurance, and he said, `Yes.' I asked him, could I write it, and he said I could. I asked him how much insurance he wanted, and he said about $500 or $600. Of course, naturally I took the largest, the $600; but he didn't tell me who to put on the policy, and I took it for granted it was for him; and when he gave me the privilege to write the insurance, I went to Mr. King, and told him here was an insurance for Mr. Rudolph Schmid for $600." Thereupon Mr. King issued the policy, — the one involved in the present litigation, — and gave it to Mr. Cuquel. Mr. Cuquel took it to Mr. Schmid's place of business, and inquired for him, but, not finding him in, he gave it to Mr. Schmid's son, and told him it was the insurance for the country property, and to take it home to his father. The son, Louis Schmid, put the policy in his father's safe, and called his mother's attention to it, and requested her to inform his father. The mother, Mrs. Cresentia Schmid, subsequently, in September, 1893, gave her son the money to pay the premium, and he paid it to Mr. King, but it does not appear that Mr. King was informed or knew that the money so paid was the money of Mrs. Schmid. Nor did Mr. King, at the time he wrote the policy, know that the title of the property insured was in the complainant, and not in Rudolph Schmid, but upon direction of Mr. Cuquel wrote it in the name of Rudolph Schmid. Mr. King had no conversation at all with Mr. Schmid about the policy until after the fire. He states distinctly in the deposition that at the time he issued the policy he intended to issue it, as it was in fact issued, in the name of Rudolph Schmid, and that he did not put in Rudolph Schmid's name by mistake for the name of complainant. Rudolph Schmid gives the following version of the matter, viz.: "Question. Did you go to E. P. King & Co. to get the policy, or did their agent come to you? Answer. The agent came to me in my barber shop, and asked me if I didn't want to insure that chicken barn, and I said `Yes.' Q. What agent of E. P. King & Co. came to you? A. Mr. Cuquel. Q. Did you ever make any written application? A. Never, sir. Q. Did anything further occur between you and Cuquel other than you have just related? A. No. Q. Did you tell Mr. Cuquel in whose name the title of the property was? A. We never spoke anything about it. Q. Was anything ever said between you other than you have related? A. No." These are all the witnesses who speak to the matter, and there is absolutely no conflict between them. It is impossible to predicate a charge of mistake upon this evidence. Under what passed between Mr. Cuquel and Mr. Schmid, the clear and necessary implication was that Mr. Schmid was to be the party insured, and this thought was correctly and authentically...