Smith v. Nat'l Fire Ins. Co. of Hartford, Conn.
Citation | 207 N.W. 334,201 Iowa 363 |
Decision Date | 16 February 1926 |
Docket Number | No. 36717.,36717. |
Parties | SMITH (FARMERS' STATE BANK OF ELLIOTT, ASSIGNEE) v. NATIONAL FIRE INS. CO. OF HARTFORD, CONN. |
Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Montgomery County; Earl Peters and E. B. Woodruff, Judges.
Suit to reform and recover upon a fire insurance policy. Judgment for plaintiff. Defendant appeals. Affirmed.Stout, Rose, Wells & Martin, of Omaha, Neb., for appellant.
Ira C. Paschal, of Elliott, for appellee.
The insured, John Smith, was originally plaintiff, and will be so referred to, though the plaintiff bank as assignee has been substituted. The contest arises over the existence of a later policy, which defendant claims resulted in the avoidance of its policy. The plaintiff claims that as a part of the arrangement between him and the defendant's agent, Fortune, which resulted in the issuance of the policy, the plaintiff was to have permission to take out the additional insurance.
It is apparently conceded that the policy was on a standard form, which, before it was filled out, contained the clause set out in the petition, namely:
“It is hereby agreed that the insured may obtain $______ other additional insurance in companies authorized to do business in the state of Iowa.”
As filled out, however, the word “no” was substituted for the word “other,” so that the policy as delivered reads:
“It is hereby agreed that the insured may obtain $______ no additional insurance in companies authorized to do business in the state of Iowa.”
The policy also provided that, if the assured should thereafter procure other insurance, it should be void. The plaintiff asks for reformation so that the policy shall read that he may obtain other insurance. The trial court granted reformation, and the first question is whether the evidence authorized that relief.
Plaintiff bought the property in 1919 of Mrs. Thompson through Fortune. Fortune had written a former policy for Mrs. Thompson on the property. Plaintiff testifies:
That, about December 1, 1919, Fortune told him that the insurance would expire on December 3, 1919, and which was to be March 1st.
Plaintiff says that he told Fortune at this same time that he desired to take out $5,000 additional, and would take it in the Phœnix of Hartford. Another witness gives practically the same testimony.
Fortune said:
at that time.
Fortune says that this was first mentioned about March 1st, when the policy was delivered to plaintiff. Up to that time Fortune held the policy in his office “as a representative of Mrs. Thompson.” He repeats:
“I have no recollection of Smith's intention to take other insurance being mentioned by him to me until about March, 1920, when I handed over this policy to John Smith himself.”
The plaintiff did not sign any application for the policy with defendant, but Fortune filled out and forwarded an application, which stated that there was no other fire insurance on the property. The policy was not written in Fortune's office, but was written evidently by the general agents. Plaintiff says that, when he received possession in March, 1920, he said something to Fortune about his intention at some time to take out other insurance. After the loss occurred, plaintiff wrote to the agents “that along about March 1, 1920, I told Mr. Fortune, your agent, that I expected to take out additional insurance.” The policy sued on is for $7,000. The additional policy is for $5,000. It was stipulated that the total amount of said loss and value of said building so destroyed was the sum of $8,884, and defendant's pro rata would be $5,182.33.
Mrs. Thompson's old policy was for $3,000. The general agents, in sending the new policy to Fortune, inquired whether he was satisfied that the dwelling would “carry the amount of insurance asked for.” Fortune replied that the house was modern, with oak finish in first story; that similar houses built that year were costing from $10,000 to $12,000, and he was satisfied it was not overinsured. He also wrote the general agents that they had no other insurance on it. It is urged that the evidence shows no more than a declaration of purpose to take additional insurance in the future; that this information was given to Fortune March 1st, while the policy was issued, and was in force from December 3d preceding.
[1] I. We agree with the finding of the trial court that the policy was issued and accepted on the understanding that the plaintiff should have the privilege of obtaining additional insurance.
[2][3][4] II. Mrs. Thompson was the owner of the legal title. Plaintiff was the equitable owner. Fortune solicited plaintiff to take out a policy that would protect both. Plaintiff...
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