Shapiro v. Albany Ins. Co. of N.Y., s. 1235, 1236.

• Decision Date: 04 March 1936
• Docket Number: Nos. 1235, 1236.,s. 1235, 1236.
• Parties: SHAPIRO v. ALBANY INS. CO. OF NEW YORK. SAME v. LAW UNION & ROCK INS. CO., Limited.
• Court: Rhode Island Supreme Court

183 A. 578

SHAPIRO

v. ALBANY INS. CO. OF NEW YORK.

SAME

v. LAW UNION & ROCK INS. CO., Limited.

Nos. 1235, 1236.

Supreme Court of Rhode Island.

March 4, 1936.

Appeals from Superior Court, Kent County; Antonio A. Capotosto, Judge.

Two suits by Jennie Shapiro against the Albany Insurance Company of New York and the Law Union & Rock Insurance Company, Limited. Judgment for complainant, and respondents appeal. Affirmed by divided court.

Samuel H. Workman and Frank F. Pinkos, both of Providence, for complainant.

Henry M. Boss, of Providence, for respondents.

CONDON, Justice.

These are bills in equity brought to reform two fire insurance policies issued to the complainant as owner, instead of as mortgagee, of certain real estate on Maple avenue, Oakland Beach. The causes were heard by a justice of the superior court on the prayer for reformation on the ground of mutual mistake. In each cause the trial justice granted the prayer and filed a rescript of his decision. Decrees were entered in accordance therewith, and from said decrees the respondents have appealed to this court.

The respondents contend that the decisions of the trial justice are against the law and the evidence and the weight thereof and that they do not do justice between the parties. We have carefully examined the record, and we think that the evidence fails to support the respondents' contentions. On the contrary, the findings of the trial justice are amply supported by the evidence. The respondents do not deny that they intended to issue to Jennie Shapiro the policies covering the property designated therein, but they deny that they agreed to insure the complainant's interest as mortgagee. The complainant contends that the respondents did so agree when the policies were ordered by her, through her agent, George R. Elliott, who went to the office of respondents' agents, Gallivan & Co., and gave said order.

Elliott testified that at complainant's request he gave this order to respondents' agents on a small piece of paper, which contained a description of the property to be covered by the policies and the names of Antonio Cantone and Filomena Cantone, as owners, and Jennie Shapiro, as mortgagee. Helen Gallivan, the clerk in the insurance agent's office, testified that she took the order from Elliott but did not recall receiving from him such a paper. How she received the information on which to issue the policies, if she did not obtain it from such paper, does not appear, as, on cross-examination, she could recall no conversation with Elliott on the day he came to the office concerning the property covered by the policies or anything else. Nevertheless, she insisted that she must have taken the order from him as it appears in the order book, because, as she said, the order is in her handwriting in the order book. On this testimony, the trial justice found that the order had been given as testified to by Elliott and that in some way a mutual mistake had been made in designating Jennie Shapiro as owner instead of as mortgagee. In reaching this finding, he stated that the evidence of the complainant to this effect was "positive," whereas the evidence of the respondents to the contrary was "negative" and rested solely upon inference and recollection. He states in his rescript that there was no evidence of fraud or other improper motive in the case, and there was none. These findings are entitled to great weight and should not be set aside unless they clearly fail to do justice between the parties. Simeone v. Antonelli, 52 R.I. 41, 156 A. 799; Dwyer v. Curria, 52 R.I. 264, 160 A. 206.

The evidence clearly was conflicting, although counsel for respondents states in his supplemental brief that the question was one of drawing an inference from undisputed facts and testimony. In making this contention, counsel shifts his position from the one he assumed in the superior court. According to the transcript, he argued to the trial justice then as follows: "Now, here we have contradictory testimony—the testimony of Mr. Elliott that he went to the office of Gallivan & Company. * * * We have the testimony of Mr. Gallivan and his sister," etc. After contrasting their testimony, he adds: "Now it seems to me that with the testimony in that position, if the court is unable to decide as to the credibility of witnesses or the veracity of witnesses, the Court would not have clear and convincing testimony." Plainly in the trial court respondents' counsel not only thought there was a conflict in the evidence but argued pointedly on that assumption. The difficulty confronting him now is that the trial justice was able "to decide as to the credibility of witnesses or the veracity of witnesses," and thus was able to come to a decision on the conflicting testimony, so that now on appeal to this court counsel for respondents is driven to the necessity of convincing us that the evidence is undisputed in order to avoid the effect of the adverse decision of the trial justice. Our examination of the transcript convinces us to the contrary, and therefore there is no room in the instant causes for applying the rule of Stiness v. Brennan, 51 R.I. 284, 154 A. 122, Raferty v. Reilly, 41 R.I. 47, 102 A. 711, and Lisker v. Emery, 54 R.I. 190, 171 A. 914, upon which respondents' counsel seeks to rely.

The conflict in the evidence is quite clear to us from a reading of the testimony of the two chief witnesses, George Roy Elliott for the complainant, and Helen F. Gallivan for the respondents, as to what occurred at the office of Gallivan & Co, agents for the respondents, on August 13, 1928, the day the insurance policies were ordered by Elliott, as agent for the complainant. Elliott testified that he gave the order by handing to the clerk who waited on him a small piece of paper containing a description of the property to be covered and the names of Antonio Cantone and Filomena Cantone, as owners, and the name of Jennie Shapiro, the complainant, as mortgagee, and that this order was copied into the order book in his presence, although he did not see what the clerk wrote in the book. Helen F. Gallivan, the clerk who took the order, testified on direct examination that she did not receive such a piece of paper, but later, on cross-examination, said she did not recall receiving it. Her testimony based on her recollection was therefore in conflict with that of Elliott.

The complainant testified that she requested Elliott to obtain insurance of her interest as mortgagee in this property at Oakland Beach. As the complainant did not know the correct spelling of the names of the owners, Elliott testified that he obtained the correct names from a neighbor of the Cantones, a Mrs. Rossi, and that at that time he put the names down, with the name of Jennie Shapiro as mortgagee, on the small piece of paper which he handed in at the office of the respondents' agents. We are not confronted here with a situation like that in Stiness v. Brennan, supra, but rather with the usual case of a review of findings of fact of the trial justice on conflicting testimony as in Gaynor v. Wax, 50 R.I. 194, 146 A. 814, and many other similar cases which we need not cite here.

Objection is made, however, that the trial justice, in weighing the evidence and deciding for the complainant, has not done justice between the parties because such evidence is not sufficient to prove mutual mistake. If the evidence is not clear and convincing that such a mistake was made, the complainant cannot recover. But the trial justice had pointed out to him by respondents' counsel the necessity for such clear and convincing evidence, and yet has accepted the complainant's evidence as having that necessary probative quality. Unless he is clearly wrong in this, his findings should not be set aside.

From our examination of the record, we cannot say that these findings are clearly wrong. A correct decision hinges on what occurred in the office of Gallivan & Co. on August 13, 1928. We have on the one hand the explicit and affirmative testimony of Elliott that he gave to the clerk an order for this insurance on a piece of paper with the names of the insured and their interests in the property to be covered by the policies, as well as its location, written thereon. All necessary information for entering the order was on that paper. He testifies positively why he had the names on this slip of paper and who gave him the names of the Cantones. He says he stood at the counter in the office of Gallivan & Co. and saw the clerk copy from the piece of paper he had handed to her.

On the other hand, Miss Gallivan testifies that she did not receive such a slip of paper. She says she took the order, but she has no recollection of what occurred between herself and Elliott. She is sure she took the order from him because of the fact that the entry in the order book is in her handwriting, and that, when Elliott came to the office on business, she always waited on him if she was there. Several times in the course of her examination she assumes that a certain thing must have occurred in a certain way because of an entry in the order book. After a careful examination of her testimony, we have come to the conclusion that she has no present recollection of the transaction with Elliott, and that her denial of receiving the slip of paper from him at the time she took the order is nothing more than a conclusion which she has reached in her own mind, based upon the entry in the order book in her handwriting on the day in question.

The testimony of James J. Gallivan, the only other witness in behalf of the respondents, is inconsequential and has little if any, bearing upon the issue. The testimony of the complainant Shapiro is consistent with that of Elliott and tends to support his testimony as to obtaining the names of the Cantones. We think, therefore, that the trial justice was justified in holding that the weight of the evidence so clearly...