W. B. Coppersmith & Sons Inc v. Ætna Ins. Co

• Decision Date: 23 September 1942
• Docket Number: No. 31.,31.
• Citation: 21 S.E.2d. 838,222 N.C. 14
• Court: North Carolina Supreme Court
• Parties: W. B. COPPERSMITH & SONS, Inc., et al. v. ÆTNA INS. CO., HARTFORD, CONN., et al.

21 S.E.2d. 838

222 N.C. 14

W. B. COPPERSMITH & SONS, Inc., et al.

v.ÆTNA INS. CO., HARTFORD, CONN., et al.

No. 31.

Supreme Court of North Carolina.

Sept. 23, 1942.

Appeal from Superior Court, Pasquotank County; Clawson L. Williams, Judge.

Action by W. B. Coppersmith & Sons, Incorporated, and another, against Aetna Insurance Company, Hartford, Connecticut, The Automobile Insurance Company of Hartford, Connecticut, and others, upon a fire and marine insurance policy, wherein plaintiffs sought reformation of the policy. From a judgment as in case of nonsuit, plaintiffs appeal.

Affirmed.

This is an action instituted by the plaintiffs upon a fire and marine insurance policy issued by the Tugboat Underwriting Syndicate, composed of the sixteen insurance companies named as defendants therein. The policy in suit was written on the tug "Eureka" to cover the period from July 15, 1940, to July 15, 1941, and was for the sum of $8,000, loss, if any, payable to N. F. Eure, and contained inter alia, the provision: "From the total amount of any and all claims covered here under * * * resulting from one casualty, the sum of $1000.00 shall be deducted."

On August 4, 1940, the tug "Eureka" sustained fire damage to her hull in the amount of $890. Claim was made by the plaintiffs upon the defendants for payment of this amount, which claim the defendants denied. Whereupon the plaintiffs instituted this action.

From a judgment as in case of nonsuit, upon defendants' demurrer to the evidence under C. S. § 567, the plaintiffs appealed, assigning as error the court's action insustaining the defendants' motion to dismiss and entering judgment accordingly.

R. Clarence Dozier, of Elizabeth City, for appellants.

Worth & Horner, of Elizabeth City, for appellees.

SCHENCK, Justice.

Since the policy in suit contained an unlimited one thousand dollar deductible clause, and since the loss in suit was only $890, it follows, nothing else appearing, that the action cannot be maintained.

However, the plaintiffs by an amendment to the original complaint seek to reform the policy to conform to what they allege was the policy actually purchased by the plaintiffs by striking therefrom the clause providing for $1,000 deductible in so far as it related to loss by fire, which said clause they allege was inserted in said policy (1) through mistake or inadvertence of the draftsman or scrivener, or (2) by mutual mistake of the parties, or (3) on account of mistake of the plaintiffs and fraud of the defendants.

There is no evidence in the record of either a mistake of the scrivener or of fraud of the defendants.

As to the allegation that the $1000 deductible clause was made applicable to loss by fire through mutual mistake of the plaintiffs and the defendants, all of the evidence tends to show that the policy in suit was obtained for the plaintiffs from the defendants upon request of the plaintiffs by an application therefor on behalf of the plaintiffs made by one Dal H. Williams, who conducted a general insurance business in Elizabeth City, N. C, to insurance brokers in New York City, and that said application contained a $1,000 deductible clause, with no exception...