Clem v. German Insurance

Philips, P. J. I. We are unable to reconcile the finding of the trial court with some of the undisputed facts disclosed in evidence. That the insertion of other' property than the flour in the policy of insurance was outside of any authority given by the plaintiffs is beyond question. The agent himself testified, inter alia, as follows : “ The day this policy was issued, Clem came to my office and stuck his head in the door, and. said he [673] liad bought another carload of flour, and wanted four hundred dollars more insurance. Clem said, standing in the door with his hand on the knob, ‘we have bought another carload of flour, and want four hundred dollars more insurance.’ ” It was on this statement by plaintiff, Clem, that the agent wrote up the policy. There can be no just pretense for the contention of defendant’s counsel that there was no mutual mistake of the parties; and if the agent wrote up the policy as he understood the terms of the parol application, but which was contrary to the understanding of the plaintiffs, their only remedy was, on discovering the fact, to promptly return the policy and demand a rescission. For, as to the property to be insured, the agent for the company admits that he understood the proposition just as the plaintiffs did. The existence of fraud and mistake is a matter of proof; and like every operation of the human mind, not tangible to the touch nor visible to the eye, it is an inference to be drawn from the proof of obvious facts and circumstances, from which the principal fact in controversy may be inferred. Knowing, as the agent did, that the application of plaintiffs was only to take out additional insurance on the newly-arrived flour, the conclusion would seem to be irresistible that, in incorporating other property in the policy, he did so either designedly or through mistake. If purposely done, the inference of fraud follows. If from mistake, and the fact was not discovered until just before the loss, the plaintiffs are equally entitled to have the instrument reformed, so as to express the real contract. Tessen v. Ins. Co., 40 Mo. 36. The most charitable view to the agent to take of this matter is, that having before him the policy of the Glen Falls Insurance Company, he copied from it the description of the property unthoughtedly. For he testified : “When I wrote this policy (the one in controversy) I saw the other for eight hundred dollars in the [674] Grlen Falls Company.” Be this as it may, when the plaintiffs applied for a policy on the flour, alone, and the agent, without objection, then consented to issue one for the premium, there was the essential aggregatio mentium, and the contract was complete. Keim v. Ins. Co., 42 Mo. 41; Lungstraus v. Ins. Co., 57 Mo. 107; Lingenfelter v. Ins. Co., 19 Mo. App. 264. The evidence of the plaintiffs was, that, when they discovered the mistake, they called on the agent and made complaint and requested him to rectify the matter ; and that he, in effect, conceded the fact as to the understanding that only the flour was to be insured. Although testifying on behalf of the defendant, the agent, while stating in general terms that the policy expressed the only contract made with plaintiffs, made no direct denial of the testimony of the plaintiffs as to said admission. So the important admission stands uncontradicted. In our opinion, the plaintiffs made out a clear right to have the policy reformed in this respect, and the decree should have so gone. II. All the other items being thus eliminated from the policy, it is unnecessary to consider the effect on the contract which might have been produced by the sale of that property to Blackburn. III. The only remaining important question is, as to plaintiffs’ right to have the policy reformed as to the provision concerning other concurrent insurance. It appears, from the evidence, that nothing was said at the time of the application for insurance, either as to what company the plaintiffs desired to insure in, or as to any other special provisions to be inserted therein. Leaving the matter thus, it is reasonable to presume they intended, first, that the agent should write the policy in a company presented by him, and, second, that he would write it up in the usual mode or custom of ■such company in issuing policies. The plaintiffs, by accepting the policy, acquiesced in the selection made by the agent. They, therefore, -are presumed to have known that the policy was hot in the same company as [675] the first. The evidence on the part of defendant was, that its uniform rule was not to issue a policy without inserting the provision respecting concurrent insurance in other companies. This is customary. The agent also testified that, knowing, as he did, of the other insurance in the Glen Palls Company, he would not have issued this policy without inserting such stipulation, as his explicit instructions from his principal forbade him doing-otherwise. There was, then, no antecedent agreement between plaintiffs and defendant respecting- this matter, nor any mistake or fraud on the part of the agent in inserting this usual provision in the policy. This presents clearly a case where, after discovering the clause of the policy, if not acceptable to the assured, their proper course would have been not to accept, and at once return it for cancellation; though it is not necessary to say they could have compelled a cancellation. Our conclusion is, the plaintiffs are not entitled to the relief sought as to this provision of the policy. IY. Question is made by respondent as to the right •of the plaintiffs, after the court shall have made decree reforming the policy, as indicated in the first paragraph of this opinion, to have judgment on.adjustment of the loss. It is claimed that this can only be done where the plaintiffs have added a separate count for such cause of action. It certainly is among the Recognized rules of equity proceeding that, when a court of equity once acquires jurisdiction of a cause like this, Ciit will not relax its grasp upon the res until it shall have avoided a multiplicity of suits by doing full, adequate, and complete justice between the parties. It will not content itself in this regard by any halfway measures ; it will not declare that a party has been defrauded of his rights, and then dismiss him with the bland permission to assert, at new cost and further delay, those rights in another forum! Real Estate Savings Institution v. Collonius, 63 Mo. 295; 2 Pom. Eq., sec. 862. And without ■either denying or affirming that the ruling in Henderson [676] v. Dickey, 50 Mo. 161, is applicable to this case, we hold that the petition in this case substantially meets the requirements of that opinion, for it contains, first, the essential averments entitling the plaintiffs to the equitable 'relief; and then adds the allegations showing the loss by fire, the furnishing the requisite proofs of loss, and the amount of such loss, with a prayer for judgment therefor. It is true the prayer for general relief is mingled therewith. But this is not fatal, as the two prayers refer to their respective subject-matters. Y. It-follows that the judgment is reversed, and the cause is remanded with directions to the circuit court to enter the appropriate decree reforming the policy by eliminating therefrom all the items of property insured except the flour, to hear the proofs as to the value of the flour destroyed, and to make the adjustment accordingly. All concur.