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become known only after the trial. And it is
(134 Ark. 152) said that the jury took the loss of this colt in- CONNECTICUT FIRE INS. CO. OF HARTto account in assessing the damages. Counter FORD, CONN., v. WIGGINTON et al. affidavits were filed to the effect that there
(No. 319.) was no evidence that the colt had died, and (Supreme Court of Arkansas. April 22, 1918. it does not appear that the instructions sub
Dissenting Opinion, June 3, 1918.) mitted this issue. The motion for a new trial was overruled on October 6, 1917, by 1. REFORMATION OF INSTRUMENTS Om16, 45(1)
-MISTAKE-EVIDENCE. Hon. W. H. Evans, the regular judge, but
Courts will not reform instruments in writthe trial had been presided over by Hon. ing for mistake unless the mistake is mutual and Scott Wood upon an exchange of circuits. established by evidence which is clear, unequivoThe certificate to the bill of exceptions pre-cal, and decisive. pared by Judge Wood, dated November 19, 2. REFORMATION OF INSTRUMENTS Ow 45(14)
INSURANCE POLICY-MISTAKE-EVIDENCE 1917, reads as follows:
SUFFICIENCY. "I am unable to determine the question of In a suit to reform a fire insurance policy whether or not Joe Porter, Eugene Porter, and by substituting a mortgage clause for a loss other witnesses testified that the colt concern- payable clause, evidence held to show mutual ing which they testified starved to death." mistake. This statement must be construed as de- 3. INSURANCE am 143(8) — REFORMATION OF
POLICY-DEFENSES. clining to allow the exception that there was
That the beneficiary under a fire insurance such testimony. It was the province of the policy accepted the policy and retained it for a court to determine what evidence was heard long period of time without reading it does not at the trial and to make a certificate there constitute a defense to an action to reform the of in the bill of exceptions, and with the policy by substituting a mortgage clause for a record now before us we must hold that he
McCulloch, C. J., and Hart, J., dissenting. has refused to allow this exception. And in the absence of a bystander's bill of exceptions Appeal from Poinsett Chancery Court; this certificate is conclusive upon us. Appel- Archer Wheatley, Chancellor. lant had the right, when the trial judge re- Suit by J. R. Wigginton and others against fused to allow this exception, to bring it the Connecticut Fire Insurance Company of into the record through the affidavits of Hartford, Conn., to reform a fire insurance bystanders in accordance with section 6226 policy and to recover thereon. Decree for of Kirby's Digest. The affidavits filed in plaintiffs, and defendant appeals. Affirmed. support of the motion for a new trial cannot be held to constitute a compliance with the lant. Hawthorne & Hawthorne, of Jonesboro,
J. A. Watkins, of Little Rock, for appelprovisions of this section, because they were for appellees. not filed for that purpose, and they are not treated by counsel for appellant as constituting a bystander's bill of exceptions. They
HUMPHREYS, J. Appellees instituted were prepared and used in support of the suit in the Poinsett chancery court to reform motion for a new trial, and if they had any a policy of insurance issued by appellant to place in this record—a fact which we do not J. R. Wigginton on the 4th day of February, decide—it would have been necessary to 1913, securing him and his mortgagee, the bring the affidavits themselves into the record Marked Tree Bank & Trust Company, against through the bill of exceptions. So that we loss which might be occasioned by fire to a have before us only one bill of exceptions, two-story frame dwelling .situated on lot 1, and that is the one signed by the trial judge, block 3, Ritter's Third addition to the town of and according to it the record presents no Marked Tree, Ark., and to recover the amount question of newly discovered evidence. Some of the policy. It was alleged that through other questions are raised in the brief, but mistake a loss payable clause in favor of the they are not of sufficient importance to be Marked Tree Bank & Trust Company was atdiscussed here.
tached to the policy as a part thereof, instead  Appellee not only asks an affirmance of a standard mortgage clause; that the loss of the judgment of the court below, but payable clause was subject to the conditions asks us to render judgment here for the in the policy, and one condition was that usable value of the mare since the date of no recovery could be had in case foreclosure the judgment below. We cannot do this be- proceedings were instituted, whereas the cause it would be the exercise of original standard mortgage clause contained an exjurisdiction to determine who had posses- emption from that condition in the policy. sion of this mare from the date of the judg- Appellant answered, denying that it agreed ment below and what its usable value has to attach a standard mortgage clause to the been. Any relief to which appellee may be policy, and that its failure to attach said entitled on this account must be obtained clause was a mistake, and set up as a deby a suit on the supersedeas bond. Bolling fense that foreclosure proceedings were comv. Fitzhugh, 82 Ark. 206, 101 S. W. 173; menced on the 6th of March by the Marked v Love v. Cahn, 93 Ark. 215, 124 S. W. 259. Tree Bank & Trust Company against W. R. Judgment affirmed.
Wigginton before the building was destroyed
CONNECTICUT FIRE INS. CO. OF HARTFORD, CONN., v. WIGGINTON
by fire, which suit, under the contract, void-, for appellees, on February 12, 1916, denying ed the policy.
liability, and calling their attention to an The court heard the cause upon the plead- authority which he contended sustained his ings and evidence, reformed the policy, and position and that firm replied on March 6th, rendered judgment for $2,000 and interest to the effect that they would test the matter in favor of appellees against appellant. in the courts unless a compromise could be From that decree an appeal has been prose-effected. The mistake contended for was not cuted to this court.
called to the attention of Mr. Watkins by  It is contended by appellant that the Hawthorne & Hawthorne in their letter to evidence is not sufficient to establish the him of date March 6, 1916. fact that it was the intention of the parties Paul Leatherwood testified on two different to the contract to make the standard mort- occasions. The first time the substance of
. gage clause a 'part of the policy. Courts his evidence was as follows: That he was will not reform instruments of writing for in the insurance business, and wrote the mistake unless the mistake is mutual and policy in question, but did not remember at established by evidence which is clear, un- whose instance; that he did not remember equivocal, and decisive. Parker v. Carter, whether any one told him how to write the 91 Ark. 162, 120 S. W. 836, 134 Am. St. Rep. policy, but that he wrote it according to 60; Hoffman v. Rice Stix D. G. Co., 111 Ark. custom; that he did not know why he placed 205, 163 S. W. 520; Eureka Stone Co. v. the loss payable clause instead of the mortRoach, 120 Ark, 326, 179 S. W. 499.
gage clause on the policy; that all he remem As to whether the court was correct bered was that the bank had a mortgage in reforming the policy must depend on from Wigginton on the property and paid the whether the evidence clearly shows a mutual premium; that his idea was to protect the mistake was made in attaching a loss pay- bank; that he did not particularly know the able clause to the policy instead of a mort difference between the clauses at that time; gage clause. The policy sued on was issued that he kept a daily report in triplicate, pastby appellant to appellee Wigginton on the ed one on the policy, one on daily record 4th day of February, 1913, and provided that book, and sent one to the company; that the appellant would pay not to exceed $2,000 to daily record of this transaction contained appellee Wigginton in case his dwelling sit- the loss payable clause; that he had no recuated on lot 1, block 3, Ritter's Third addi-ollection of ever placing a mortgage clause tion to the town of Marked Tree, Ark., should on any policy; that his records would show; be destroyed by fire within three years after that Mr. Du Bard succeeded him in business the date of the policy. The loss payable and had the records; that he had both kinds clause contained in the policy was set out in of clauses. The second time his evidence, the proof of loss.
was, in substance, as follows: That he solicM. W. Hazel, the vice president of the ited the insurance from Wigginton, and, bank, testified that upon authority obtained while he did not remember about the loss from Wigginton he applied to Paul Leather- payable clause and mortgage clause, still, if . wood, appellant's local agent, for the policy, he knew about the mortgage, it was evidentpaid him the premium of $50, and requested ly his intention at the time to place a morthim to attach a mortgage clause in favor of gage clause on the policy. the bank; that the agent delivered the pol- J. R. Wigginton testified, in substance, that icy to the bank; that he never read it; that the officers of the bank wanted to make the it remained in the possession of the bank collateral as strong as possible; that he went until after the fire; that he passed upon to Paul Leatherwood and told him that he loans, and the cashier and loan board looked wanted to give the bank a mortgage on the over the papers securing loans; that Mr. policy, and asked him what he should do in Leatherwood had his office in the bank and order to effect that purpose; that he was wrote all the policies for the bank which informed the company furnished blanks, and protected its loans; that after the fire he the agent agreed to fill out and attach it to got the policy and directed the cashier to at the policy; that in speaking of placing a tend to making the proof and collecting the mortgage on the policy he had reference to insurance; that he was not present at the a mortgage clause; at the time he did not time the proof of loss was made and knew know the difference between the two clauses. nothing about its contents; that he first J. D. Du Bard testified, in substance, that learned of the kind of protection the bank he was cashier of the bank and received the had from his attorney after the policy was policy; that Wigginton owed the bank $2,600 delivered to the attorney for collection. in notes, with W. M. Hazel as indorser on
J. C. Hawthorne testified that he prepared some of them; when the policy was securthe proof of loss, but did not know a mistakeed, Hazel was relieved as indorser on the had been made in attaching the loss payable notes; that he never read the policy; that 'clause instead of the mortgage clause until the stockholders met annually and the diafter he had a talk with Mr. Hazel subse- rectors monthly and examined the affairs quent to March 6, 1916.
and securities of the bank; that he presumed Mr. J. A. Watkins, attorney for appellant, none of the directors read the policy in wrote to Hawthorne & hawthorne, attorneys question; that at the time he received the
policy he had every reason to believe that , closed its mortgage without first attempting
 We do not understand that the rule anloss payable clause attached.
nounced in Remmel v. Griffin, 81 Ark. 269, The following admission was made by ap- 99 S. W. 70, and later cases, to the effect that pellant in the course of the trial:
"one who takes out a policy of life insurance “It is admitted that T. J. Sharum, N. J. Hazel, is required to examine it within a reasonM. W. Hazel, C. A. Dawson, C. M. Lutterloh, and the other directors of the bank, if present, able time after he receives it, or he will be would testify that they did not examine or read deemed to have accepted it,
*' has on that it had a loss payable clause on it instead any application in suits for reformation of of a mortgage clause."
contracts on account of
account of mutual mistake.
When it appears by clear, satisfactory, and It is conceded by learned counsel for ap- convincing evidence that the parties to a pellant in his splendid brief that recovery contract intended to express a different thing may be had on the policy in case it was the from that expressed, a court of equity will intention of all parties to the contract at the reform the contract so as to express the real time the policy was written to make a part intention of the parties irrespective of whethof it a standard mortgage clause. At the er one, both, or all the parties thereto availtime of making the contract the insuranceed themselves of the opportunity to read it company was represented by Paul Leather-before signing or receiving it. So in the case wood, and Wigginton and the Marked Tree at bar the fact that the cashier received the Bank by M. W. Hazel. The testimony of M. policy, and the bank retained it for a long pe
, W. Hazel and J. R. Wigginton is certain and riod of time without reading it, cannot avail unequivocal to the effect that the agent was appellant as a defense, because it is establishtold to place a mortgage clause on the policy, ed by clear, satisfactory, and convincing proof and that he agreed to do so. Paul Leather that the intention of all the parties to the wood, the agent, said in his first testimony contract was to place a mortgage clause, and
, that he did not remember who ordered the not a loss payable clause, on the policy. policy, nor what was said to him, but his idea
This conclusion renders it unnecessary to was to protect the bank. In his second tes- discuss other questions presented by able timony he said, if he knew about the mort- counsel in their briefs. . gage, "it was evidently his intention at the
No error appearing, the decree is affirmed. time to place a mortgage clause on the policy.” The company had furnished him both
McCULLOCH, C. J., and HART, J., diskinds of blanks, and the evidence is conclu- sent. sive that he knew of the existence of the mortgage, so, in view of this latter state- MCCULLOCH, C. J. (dissenting). The poliment, there is no escape from the conclusion cy of insurance sought to be reformed was that he intended to place a mortgage clause issued on February 13, 1913, and was delivupon the policy. These three parties are the ered to the Marked Tree Bank & Trust Comonly three who participated in the procure- pany on that date with an indorsement therement and execution of the policy; so it may on of what is commonly known as a “less be said with certainty from the evidence that payable clause.” The building was destroythere was a meeting of the minds of all the ed by fire on January 9, 1915, nearly two parties to the contract for a mortgage clause years after the issuance of the policy, withto be attached to the policy. The failure to out any complaint having been made concernattach a mortgage clause and the substitu- ing the form of the indorsement. A policy of tion of a loss payable clause constituted a insurance is a written contract between the draft of contract contrary to the intention insurer and the beneficiary, and the right to of all the parties. Not only is this conclu- a reformation of the contract in equity on sion sustained by the positive evidence of the the ground of mutual mistake must, accordparties, but the subsequent conduct of the ing to well-settled rules announced by this bank officers points unerringly to the same court, be established by evidence which is
witnesses testified concerning the issuance of worth the paper on which they are written. the policy-Hazel, one of the officers of the But such is not the law.
But such is not the law. A contractor must Marked Tree Bank & Trust Company, Leath- I will not read what he signs, he alone is respon
stand by the words of his contract; and, if he erwood, the insurance agent who wrote the sible for his omission." Upton, Assignee v. policy, and Wigginton, the owner of the build- Tribilcock, 91 U. S. 50, 23 L. Ed. 203.
. ing. The substance of Hazel's testimony is
We have applied this doctrine in cases concontained in the following sentence as to his
cerning the acceptance of insurance policies. conversation with Leatherwood:
. , , ",
'I would not remember the exact terms, but I Remmel v. Griffin, 81 Ark. 269, 99 s. W. 70; called him and told him I wanted him to make Smith v. Smith, 86 Ark. 284, 110 S. W. 1038; out an insurance policy on this property and at- Gray v. Stone, 102 Ark. 146, 143 S. W. 114.
. tach a mortgage clause to it to secure the bank.” The only exception to the rule is that,
The witness did not state what Leather-where there has been a fraudulent represenwood's answer was. He did not say that tation concerning the contents of an instruLeatherwood promised to use any particularment, the party, relying upon such represenform of indorsement, nor represented to him, tation and being induced thereby to refrain when the policy was delivered, or at any from reading the contract, is not estopped to other time, that the policy contained any question its correctness. Stewart v. Flemparticular form of indorsement. Leather-ing, 96 Ark. 371, 131 S. W. 955. There is no wood testified that he had no recollection of such element as that in the present case, for the conversation, and that he did not know it is not claimed by any witness that Leaththe difference between a "standard mort erwood made any representations when he gage clause” and a “loss payable clause.” delivered the policy, or at any other time, as Wigginton testified that he did not know the to the kind of indorsement he had made on difference between the tw) clauses in ques- the policy. It is clear from the testimony tion and merely stated to Leatherwood that that, when Leatherwood made the indorsehe wanted to give the bank "a mortgage on ment, it was thought to be sufficient to prothat policy.” Leatherwood attached the “loss tect the bank, and was accepted as such. If payable clause" to the policy--that is to say, Mr. Hazel had in mind any particular form,
” — a clause making the policy, in case of loss of which he now says he wanted indorsed on the property by fire, payable to the Marked the policy, his testimony does not show that Tree Bank & Trust Company as its interest he specified it in his directions to Leathermight appear—and delivered the policy to wood. The bank could have protected itself the cashier of the bank, who kept it until the if the officers had informed themselves of the fire occurred without raising any question contents of the policy and the indorsement as to a mistake in the form of indorsement. thereon, and complied with the terms of the
The testimony is far from convincing, I policy, and, having failed to do so, the bank think, that a mistake was made. It is not is estopped to assert now that the policy is established by evidence "clear, unequivocal, not in accordance with the intention of the and decisive.” No witness puts his finger on parties. a form of indorsement and says, “This is For these reasons, I dissent from the conwhat we agreed upon.” No witness tells of a clusion reached by the majority promise on the part of Leatherwood, the agent of the company, other than to make an Mr. Justice HART concurs in these views. indorsement protecting the mortgagee in case of loss, and he did that by indorsing a clause
(134 Ark, 337) making the policy so payable.
KING V. HARRIS et al. (No. 380.) Moreover, the bank is estopped to dispute the correctness of the policy by the conduct (Supreme Court of Arkansas. May 20, 1918.) of its officers in keeping the policy for near- | 1. STATES Ou200_ACTION-PARTY IN EJECTly two years without question. It was their MENT-JURISDICTION. duty to read the policy, and, having failed to In ejectment, where the state, by the prosedo so, they cannot be heard to say that it cuting attorney, filed answer and demurrer, setdoes not correctly express the contract. Co- ting up its title to the land by virtue of escheat
proceeding, thus becoming in effect a party lonial & United States Mortgage Co. v. Jeter, plaintiff to the litigation, the circuit court should 71 Ark. 185, 71 S. W. 945; Pratt v. Metzger, not have dismissed the complaint on the ground 78 Ark. 177, 95 S. W. 451; Mitchell Manufac- that the suit was against the state, of which the
court had no jurisdiction; the state's sovereignturing Co. v. Kempner, 84 Ark. 349, 105 S. W. ty not being involved. 880; Stewart v. Fleming, 105 Ark. 37, 150 S. 2. ESCHEAT Cm7-ATTACK IN EJECTMENT ACW. 128. In those cases we quoted with ap
TION-RIGHT OF PLAINTIFF. proval the following from an opinion of the filed answer and demurrer, thus in effect be
In ejectment, where the state appeared and Supreme Court of the United States:
coming a party plaintiff and claiming the land “It will not do for a man to enter into a con- under former escheat proceedings, plaintiff was tract, and, when called upon to respond to its entitled to a trial of the issue whether there had obligations, to say that he did not read it when been a substantial compliance with the statutes he signed it, or did not know what it contained. defining the procedure and vesting title to es. If this were permitted, contracts would not be cheated property in the state.
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
3. COURTS 24-JURISDICTION OF SUBJECT- , possession of said lands as the tenant of the MATTER-ACQUISITION BY CONSENT.
state of Arkansas under authority of the Where the circuit court of Madison county, where the land involved was situated, made no | prosecuting attorney, and that said suit, order changing venue of a suit in ejectment, the which had been instituted to recover the posWashington county circuit court, to which the session of said lands by appellant, was in
by was without jurisdiction to try such suit, since, effect and in fact a suit against the state, while jurisdiction of the parties may be acquired and not against the nominal defendants by consent, jurisdiction of the subject-matter of named in the complaint. It appears that the litigation cannot thus be acquired.
the case was then transferred by consent to Appeal from Circuit Court, Washington the circuit court of Washington county, County; Jos. S. Maples, Judge.
where it was tried before the circuit court Action by Tom King against J. C. Harris without the intervention of a jury. But no and another, wherein J. S. Combs, Prosecut-order changing the venue was made. The ing Attorney for the Fourth Judicial Dis- circuit court of Washington county held that trict, appeared in behalf of the state. From the suit was in effect one against the state, an order dismissing the complaint, plaintiff and that the circuit court was without juappeals. Judgment reversed, and cause re- risdiction to try the same, and dismissed the manded, with directions.
complaint without prejudice, and this appeal
has been prosecuted to review that order. J. V. Bourland, of Ft. Smith, for appellant.
 No order appears to have been made Jno. D. Arbuckle, Atty. Gen., and T. W. by the court below upon the filing of the Campbell, Asst. Atty. Gen., for appellees.
prosecuting attorney's demurrer and answer ;
but testimony was heard in the court below SMITH, J. Appellant filed his complaint and the cause proceeded to judgment as if in ejectment in the circuit court of Madison the state had been made a party to the procounty against J. C. Harris and George Ful- ceeding, and the final judgment entered in lerton, in which he sought to recover the the cause indicates that the court below possession of certain lands situated in that treated the state as having been made a parcounty. He deraigned title by descent as the ty to this litigation, and we will so treat the only heir at law of one S. S. Smith, who, ac- record, although this appeal has been proscording to the allegations of the complaint, ecuted and perfected in the names of the had died seised and possessed of the land original parties. The state has in effect besued for. Harris and Fullerton did not ap- come a party plaintiff to this litigation, and pear, and made no defense whatever to the the court should not thereafter have disaction. But J. S. Combs, prosecuting attor- missed the complaint for the reason asney for the Fourth judicial district, in which signed ; i. e., that it was a suit against the Madison county is located, appeared in the state. The state's sovereignty is in no manaction in behalf of the state of Arkansas ner involved in this litigation. At its own and filed for the state a pleading which is election and through its prosecuting attordenominated in the record as an answer and ney it became a party to private litigation, demurrer, in which pleading said prosecuting which involved the title to a tract of land attorney set up that the lands described in which had been owned by appellant's ancesappellant's complaint had previously es- tor at the time of his ancestor's death. The cheated to the state upon the death of S. S. state asserted title only by virtue of a cerSmith, the former owner, and that after the tain escheat proceeding, and it was, of estate of said Smith had been fully adminis- course, competent for the heir at law who tered, and no heirs at law being known or ap- claimed the property to show that the title pearing to claim said land, the prosecuting to the property had not been divested out of attorney had instituted, in the circuit court Smith's heirs, in fact escheated. And that of Madison county, the proper proceedings is now the question at issue. prescribed by law to vest title to such lands
 We do not review the record in this in the state, and that the persons named as case to determine the validity of the escheat defendants in appellant's complaint neither proceeding, as it suffices to say that appelhad nor claimed any interest whatever in lant undertook in the court below! in opposisaid lands; that the only connection which tion to the state's intervention, to show Harris had with said lands was that he had that there had been no substantial complibeen the administrator of the estate of said ance with the statutes of this state which Smith, deceased, the former owner of said define the procedure for vesting the title to lands, and as such administrator had col- escheated property in the state, and appellected the rents on said land during the lant is entitled to a trial of this issue in the course of said administration, and had ap- proper forum. plied said rents, along with the personal  However, the point is made that the property of the deceased, to the payment of Washington circuit court did not have judebts probated against the estate of de- risdiction to try this case, for the reason ceased; and that said Fullerton was, at the that the lands in controversy are situated in time of the institution of said action, in Madison county, and it was only by consent