Home Ins. Co., New York v. Privitt

BROWN, Justice. Appellees, Claude Privitt and his mother, Mrs. Ada Privitt, who was joined by her husband, brought suit against appellant on what is known as a Texas Standard Fire Insurance policy, covering certain buildings and certain personal property supposed to be located in the building. It is a joint policy, and same specifically provides that the • insurance is contracted for on the building "while occupied by owner and not otherwise as a dwelling, and situated as follows.” The contract contains the sole and unconditional ownership clause and all of the other clauses in the Texas Standard Fire Insurance policy. A fire having occurred, which destroyed the insured building, and the personal property contained therein, and the insurance company having- declined to pay therefor, appellees brought suit. Proper allegations of a defensive nature having been made by the insurance company, appellees sought to reform the policy and to recover upon the contract as reformed. The purpose of this attempt was to show that the ownership of the real property was in Mrs. Ada Privitt, while the title to the personal property was in Claude Privitt, and further, to permit recovery in the event the property was occupied by either the owner or by tenants. The insurance company further pleaded that the property was unoccupied and had been vacant just prior to the fire for such a period as would bar recovery under, the terms of the policy. The case was tried to the court without a jury, and judgment was rendered reforming the policy so as to read that the insurance covers the building “while occupied by owner or tenant and not otherwise as a dwelling.” And the contract was further reformed so as to show that Claude Privitt; was the sole owner of the personal proper- ' ty referred to therein, and Mrs. Ada-Privitt the sole owner of the houses de- ¡ scribed .therein. The court rendered judgment for Mrs. Ada Privitt for the destruction of the houses, and for Claude Privitt for the dé-struction of the personal property, and the'' judgment further recites that “it appearing to the court that the plaintiffs have, hereto^ ■ fore executed a written assignment in favor : of the intervener, Clyde Suddath, for • the ; sum of $77.50, which amount is admitted ' to be just and owing by the said plaintiffs ’ to the said intervener, it is therefore order- • ed, adjudged and decreed that the said in- ' tervener do have and recover of and from : the defendant the sum of $77.50 * * ' *• which sum shall be deducted proportionate-'' ly from the respective sums decreed to the'’1 plaintiffs herein.” ■ Exception to this judgment was taken by the insurer, and the cause appealed to this court. . We do not believe that appellees’ pleadings are sufficient to raise the issue of a reformation of the instrument relied upon! All of the allegations seeking such reformation are found in paragraph 8 of the petition, through which recovery is sought, and they are as follows: [296] “The plaintiffs allege that at the time they procured said policy they fully informed the defendant’s agent, Suddath, that said houses were to be used as tenant houses, as well as a dwelling for themselves, and at the time, said houses were then occupied by tenants, and the defendant is now estopped to defend upon the ground that said house was used as a tenant house and has waived that defense; that said policy names the plaintiffs, Mrs. Ada Privitt, and Claude Privitt, as owners of the property insured; that in truth and in fact the two houses described in said policy were when said policy was applied for and issued, and at all times since, the property of the plaintiff, Mrs. Ada Privitt; that the household goods described in said policy were at said time the property of the • said Claude Privitt; that the plaintiffs at the time said policy was 'applied for and before the same was issued, fully informed the defendant’s said agent as to the title to said property as aforesaid, and the plaintiffs believed that the said agent would issue said policy accordingly; that said policy was never delivered to the plaintiffs, notwithstanding the said Claude Privitt, who was at all times acting, for himself and his mother, Mrs. Ada Privitt, requested the said agent to give him the policy, but was informed by the agent that it was proper and customary for him, the agent, to retain the policy, and the said agent did retain the policy during all of the times since the date of its issuance until after the fire occurred, and that neither ’of the plaintiffs ever saw the policy or knew any of its contents until after said fire occurred, and they were never informed that said policy did not clearly set out the respective interests of the said plaintiffs in said property, and the plaintiffs allege that by reason of the foregoing allegations they are entitled to have said policy reformed so as to show that the said Mrs. Ada Privitt is the sole owner of the two houses described in said policy and the said Claude Privitt is the sole owner of the personal property described in said policy, and further reformed so as to show that said property was to be occupied by owner or tenant.” No authorities are necessary to support the simple statement that, in order to reform an instrument on which suit is brought, the pleading should clearly show fraud, accident or mistake in the preparation of the instrument. The mistake thus relied upon must be a mutual mistake. In some cases mistake on the part of one of the parties is sufficient, provided it be attended by fraud on the part of the other party to the contract. After all is said, this is no more than fraud. We do not believe the pleading relied upon is sufficient to raise the issue of fraud, accident or mutual mistake. Furthermore, we are -of opinion that the evidence introduced by the appellees is not sufficient to raise the issue of fraud, accident or mutual mistake. The only evidence introduced for the purpose of showing any reason for or right to reform the insurance contract comes from the lips of Claude Privitt. We hold that this evidence does not tend to show that the agent who issued the insurance policy was guilty of fraud, or that the writing of the instrument in the manner and form in which it was written was done through a mutual mistake made by the agent and Claude Privitt, who sought the insurance contract. We do not understand why the agent who issued the policy and who was evidently available as a witness did not testify on the trial of this case. Of course, it was the privilege of either or both parties to call him as a witness, and we are not criticizing the parties for not doing so, but we think his testimony, which may be had, is indispensable if the contract is to be reformed; in the light of the evidence before us now. Fire Association of Philadelphia v. Hinton, Tex.Civ.App., 298 S.W. 178; Delaware Ins. Co. v. Hill, Tex.Civ.App., 127 S.W. 283, writ denied; Merchants’ & Manufacturers’ Inter-Ins. Alliance v. Hansen, Tex.Civ.App., 258 S.W. 257. In view of the provisions of the contract, we do not believe that there is any merit in the contention that the testimony tending to show the replacement value of the personal property destroyed, was inadmissible. American General Ins. Co. v. Bell, Tex.Civ.App., 116 S.W.2d 877. Furthermore, Claude Privitt made a statement concerning the occupancy of the property, in which he said that the house was last rented to a Mr. Moore, who vacated the property six weeks prior to the fire; that Moore was the last tenant who occupied the house, and that he had talked to several people about renting the premises after Moore moved out, but up to the time of the fire, same was not rented and was unoccupied. This statement was sworn to before and was made in the presence of the [297] county judge of Clay County, in which the premises were situated, and in the presence of the county attorney of'such county. For the purpose of avoiding the effect of this solemn statement so made by Claude Privitt, on the trial he testified that he had been on a drunken spree, and sought to show that he either did not know what was in his statement, or that he had not made the statements so subscribed to by him under oath. In the first place, Privitt’s testimony is not clear and unequivocal on the matter, but is evasive, and he does not attempt to say with positiveness that he made no such statement. The county judge and the county attorney both testified positively that he did make the statements; that he read the statements over after they were transcribed, and that he signed and swore to the same. These same witnesses testified positively that Privitt was not drunk and was not incapacitated at the time the statements were made. We hold that the preponderance of the credible testimony is in favor of the appellant on these matters, and we especially call attention to the fact that Privitt’s mind was clear enough at the time for him to withdraw from this statement certain other statements that he made, which were being taken down by a competent stenographer, and which statements showed that he had placed the title to his property in the name o,f another person, for the purpose of concealing his ownership from the United States. Government. We find no plea of intervention on the part of the assignee for whom judgment was rendered by the trial court, and the judgment appears in that respect to be wholly unsupported by pleading. We are inclined to the opinion that justice may best be served by remanding this cause for another trial. For the reasons given, judgment of the trial court is reversed, and the cause is remanded.