Shivers v. Farmers' Mut. Fire Ins. Co.

• Citation: 55 So. 965,99 Miss. 744
• Decision Date: 03 July 1911
• Docket Number: 15106
• Court: United States State Supreme Court of Mississippi
• Parties: W.D. SHIVERS v. FARMERS MUTUAL FIRE INSURANCE COMPANY

55 So. 965

99 Miss. 744

W.D. SHIVERS v. FARMERS MUTUAL FIRE INSURANCE COMPANY

No. 15106

Supreme Court of Mississippi

July 3, 1911

APPEAL from the circuit court of Simpson county, HON.W. H. HUGHES Judge.

Suit by W. D. Shivers against the Farmers Mutual Fire Insurance Company. From a judgment sustaining a demurrer to the declaration, plaintiff appeals.

The facts are stated in the opinion of the court.

Reversed and remanded.

Hilton & Hilton for appellant.

The sole question, as we see it, presented to this court, is whether or not the plaintiff should have filed his suit in the chancery court for a reformation of a contract of insurance, and ask for a judgment under the reformed contract or whether or not he had a standing in the forum in which he did go, which is the circuit court. This question centers about the one allegation in the amended declaration, which is the averment that a mistake as to the location in describing the situation of the property was made. This allegation must be viewed, of course, in the light of the other allegations of the amended declaration, which specifically averred that the agent of the company was on the premises when it was insured, and saw and inspected the property as described in the policy, and the other averment that this misdescription as to the location of the property was immaterial, for the reason that it did not affect the hazard of the risk, or the rate of the premium, or any other rights of the defendant.

Our view of the law is that if the misdescription in the policy as to its situation was immaterial, and has no effect upon the rights of the defendant, and was no inducement to the contract, and it can be wholly disregarded in a court of law and does not affect the right of suing in the law court, it does not require the plaintiff to have a reformation of his contract before suit is brought. For authority along this line, we cite the court to the second paragraph of section 191 of the 6th Edition to Bispham's Principles of Equity the said second paragraph being on page 275. It is there specifically said, "That the mistake must be material because the court will not interpose its extraordinary relief for slight errors in matters which are not of much importance, as misrepresentations will not vitiate the contract unless it relates to something, which is a material inducement to the parties to act; so a mistake will not justify a man in seeking equitable relief, if it is a mistake relating to some trivial matter, which does not substantially influence his action." In the same authority, paragraphs 216 and 217, beginning on page 307 under the subject of Frauds, this principle of law was elaborated upon, and numerous authorities are cited in support of this principle of law. 'We refer, also, to Kerr on Fraud and Mistake, pages 73 and 74. This same principle of law is announced, and on pages 407 and 408 of the same authority, we find under the subject of Mistakes, that the law is, that the court of equity will not entertain suits to correct mistakes where the parties have remedies at law, and on page 408 the courts of equity will not lend its aid to correct mistakes which are not material in nature, and are not of the essence of a transaction, and are only incidental to it. Numerous authorities are cited in this work in support of this principle of law. Then, if this mistake in describing the situation of the property is an immaterial error or mistake, we are rightfully in a court of law and should not seek the aid of equity. In the case of Hatch v. New Zealand Insurance Company, 67 Cal. 122, it is held that in a policy of fire insurance, a portion of the description which is false will be disregarded where enough remains to identify the property. In the case of Phoenix Insurance Company v. Gebhart, 32 Neb. 144, and Omaha Fire Ins. Co. v. Dufek, 44 Neb. 241, it was held that the misdescription in an insurance policy of the land in which personal property insured was situated, was not material to the risk, and will not avoid policy, if the property itself is properly described. In 19 Cyc., p. 664, in discussing description of subject-matter, under subject of Fire Insurance, under "l" it is said "a portion of the description which is false may be disregarded, if enough remains to identify the property. The rule being to support the contract of indemnity when possible." Authority is cited under this statement of the law. And in 19 Cyc., under the subject of Fire Insurance, on page 670, under number 15, the law is announced there as being that parol evidence may be received for the purpose of applying the description to property intended to be described in the insurance policy. This is the law in courts of law, as well as courts of equity.

Now, we contend, if the court please, by the face of the policy itself, the property is sufficiently described, even if it had made no reference as to what section of land it was located in. The real property is described as a dwelling-house, and as a smoke house. The personal property is described in specie, and is stated to be located therein; that is in the dwelling-house and smoke house, not in a section of land. The afterthought added to the description is not necessary to be written in the policy to identify the property, which was insured and destroyed by fire. We do not think counsel for appellee would seriously contend that the description of the property, both real and personal, would not be full and complete for all purposes necessary to recover in a court of law, if no mention whatever was made of its being situated in any section of land. In the case of Doherty v. German American Ins. Co., 67 Mo.App. 526, the court said that the defects were immaterial "where the property insured was described as located on at certain tract of land, and a part of the land was in section 7, and two and one-half acres of the tract were excepted for church purposes. The application placed the tract in section 8 and said nothing of the church exception. That case is directly in point with the case at bar, and we cite the court to the case of Prieger v. Exchange Mut. Ins. Co., 6 Wis. 89, in which it is held, "it is not a point material to the risk that a mill situated in the corner of one section is described in the application as being in the adjoining corner of the next section just across the stream." This case is on all fours with the case at bar.

Barbour & Henry, for appellee.

The counsel for the appellant, in their brief, take the position that, because the declaration alleges that the misdescription of the property insured is immaterial, that a reformation is not necessary of proper. It is true that all allegations of fact are taken as true on demurrer, but the allegation here relied upon is not one of fact, but is conclusion of law. It is the very thing that this court must determine in order to decide whether a reformation was necessary.

The policy is made a part of the declaration, and contains the following: " The following described property, while located and contained as described herein, and not elsewhere, to-wit: Then follows: "Located in section 11, T. 9. R. 20 west county of Simpson, one mile from Mississippi." The plaintiff, in drawing its declaration, alleges, in substance that the minds of the parties met upon the question of what property was being insured, but that "by inadvertence or mistake, the location of the property insured was misdescribed so far as its situation is concerned, that is to say, the policy issued described the dwelling-house, and other property insured by said policy, as being located in section 11, T. 9, R. 20, when it should have been section 2, T. 9, R. 20."

The suit is upon the policy of insurance, that forming the basis of the action. If the case had proceeded to trial, the proof made that the house had burned, with its contents, the location of property shown to have been in section 2, then, had the plaintiff offered the policy showing the property insured to have been situated in section 11, it is too plain for argument that he would have been promptly met with the objection to the effect that there was a fatal variance between the proof and the allegation of the declaration. For this reason, the court permitted the withdrawal of the pleas and the filing of the demurrer in this case. The question involved here is narrowed to a single issue, of whether or not the plaintiff should have gone into the chancery court and asked a reformation of the policy of insurance, and a decree there.

One of the earliest cases on the question of reformation in this state is that of the Phoenix Fire Insurance Company v. Hoffheimer, 46 Miss. 645. This was a bill asking for a reformation, and this is the thing that should have been done in this case.

Counsel, in their brief, cite the case of Wulson v. Farmer's Mutual Insurance Company, 156 Michigan, but this case is not an authority here, unless, by inference, it sustains the view which we take. The question in the Wilson case was of estoppel to deny that certain personal property was covered by the policy because moved from the barn in which it was originally insured, and by which it was described in the policy. There is no such question involved here.

The case of Hatch v. New Zealand Insurance Company, 67 Cal. 122, is also cited by the appellant, and relied upon as authority. In that case the property insured was described as "Overland and free warehouse No. 1, and described as located on the northeast corner of Third and King streets in San Francisco. The proof showed that the warehouse was not No. 1, but No. 2, but that its location was correctly stated. The court properly held that the addition of the words "No. 1" was a mere surplusage, and would be...