Opinion
07-24-1911
PLOCKZEK v. ST. PAUL FIRE & MARINE INS. CO.
Thomas Brown, of Perth Amboy, and Freeman Woodbridge, of New Brunswick, for complainant John H. Patterson, of Jersey City, for defendant.
Suit by John Plockzek against the St. Paul Fire & Marine Insurance Company. Decree for defendant.
Thomas Brown, of Perth Amboy, and Freeman Woodbridge, of New Brunswick, for complainant John H. Patterson, of Jersey City, for defendant.
HOWELL, V. C. The bill in this case is filed to recover the amount of loss under two fire Insurance policies issued by the defendant The first policy was issued to Andrew Dickey on August 27, 1906, and expired on August 27, 1909; It ran in the name of Dickey, but there was attached a mortgagee clause in favor of Andrew Crosson, mortgagee. On May 7, 1907, Dickey conveyed the land to the complainant. The complainant says that on June 12, 1907, he saw Mr. Pierce, one of the agents of the defendant company, and notified him that the property covered by the policy Just mentioned had been conveyed to him; he says that he remembers the first time he saw Mr. Pierce was when he started to fix up the building, and when he had finished that work he went to Pierce & Watson's office and there saw Mr. Pierce and told him he wanted some more insurance on his property; that Mr. Pierce looked in a book and found that the current policy was in Mr. Dickey's name, and then and there he made application for $300 more insurance. A policy for that amount was issued to the complainant on October 25, 1907. That fact, taken in connection with the testimony of the complainant, leads me to believe that the first time he ever saw Mr. Pierce about the policies was about the date of the issuing of the junior policy. This policy ran to the complainant with the mortgagee clause in favor of Crosson. The complainant never saw and never had in his possession either of the policies. The evidence shows that the older policy was in the possession of Pierce & Watson, the agents of the company, it having been intrusted to them by the mortgagee, and put away in their safe with the mortgage. Matters stood in this way until the premises were destroyed by fire; then proofs of loss, which were apparently in proper form, were submitted to the insurance company, and nothing further appears to have been done until the filing of the bill in this case on March 22, 1910. The bill sets out the two policies and the circumstances under which they were issued, and the notice of the transfer of the title of the property from Dickey to the complainant, and prays that the older policy may be reformed so as to be made payable to the complainant instead of to Dickey, and that a decree may be made directing the defendant to pay the full amount of both policies to the complainant.
I think it is quite apparent that the complainant can have no decree in this court on the junior policy; that was properly issued to the owner of the property, and if the company refused to pay, then the question as to whether the claim of the owner was just or not could be, and indeed would have to be, litigated in the courts of common law. The cause of action on the junior policy is a separate and distinct cause of action from the one accruing on the older policy. There is nodoubt but that the common-law court would permit a recovery on both policies in one suit, if they both stood on the same footing, but there is likewise no doubt but that a separate suit would be maintainable on each policy. I, therefore, am constrained to say that the complainant can have no relief in this court on the junior policy, and as to that cause of action the decree will have to be in favor of the defendant.
The suit on the older policy stands in a somewhat different position. One of the prayers of the bill is that the policy may be reformed by inserting the name of the complainant in the place of that of Mr. Dickey as the person insured. It is a well-settled doctrine, which needs no citation of cases, that the reformation of an instrument in writing can be accomplished in this court in only two cases: (1) Where there has been a mutual mistake; and (2) where there has been a mistake on the part of one of the parties, with fraud on the part of the other. There is no evidence whatever before the court which points in the direction of any fraudulent action on the part of the defendant or its agents; consequently if the complainant recovers, it must be on the ground of mutual mistake. The evidence, therefore, must be searched to ascertain whether the older policy was drawn or continued in the form in which it now appears, by the mutual mistake of the parties. Originally the policy ran to the owner of the fee, and it was apparently in proper form at the time of its issue. No question has arisen about its validity prior to the time of the transfer of the property to the complainant. The policy provides as follows:
"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if*** any change other than by the death of an insured takes place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or voluntary act of the insured or otherwise."
This provision is a part of the contract, and must be enforced, unless there is evidence that its provisions have been waived by the defendant I find no evidence of such waiver; therefore the clause thus quoted must stand as part of the contract evidenced by the policy. It is not claimed that there were any negotiations between the complainant and the defendant at the time complainant purchased the property in question, or at any time thereafter, so that there were no contract relations existing between the parties at all. The case, therefore, turns upon the conversation that the complainant says he had with Mr. Tierce, the agent of the company, in either June or October, 1907. The testimony is that at that time Mr. Tierce, the defendant's agent, was notified of the transmission of Dickey's interest to the complainant. He himself says:
"I presume our firm had notice, but it didn't come to me personally direct, because I am always very particular to see that a transfer is made."
I shall therefore assume that the defendant was notified of the change of ownership, but that of itself would not be sufficient to maintain the validity of the policy under its terms. By the terms of the policy the change of ownership invalidates the instrument, unless a note of the change is indorsed on or appended to the policy. This is part of the contract, and is appealed to by the defendant, and must therefore enter into the judgment to be pronounced by this court The requirement has not been met.
Much reliance was placed by the complainant upon the case of Milville Mutual Marine & Fire Insurance Co. v. Mechanics & Workingmen's Building & Loan Association, 43 N. J. Law, 652. But there is a difference between this case and that in this regard; in that case the question was whether notice of alienation was given to the company, and whether the company assented to it or waived the condition of the policy in this respect.
As I have said before, I find no evidence of waiver of the conditions; neither do I find any assent of the defendant to the alienation of the property insured; neither do I find that there was any request made by the complainant to the defendant for its consent to the transfer of the title. Mere notice of transfer is not sufficient The mere oral assent of the corporation would make a doubtful case, in the face of the requirement that the consent shall appear in writing indorsed upon or annexed to the policy, yet in a given case the facts might warrant the conclusion of a waiver of the provision.
The decree on the older policy must also be in favor of the defendant.