The scope of inquiry then is limited to the question whether the facts on which the judgment of the trial court is based meets the required degree of proof. Snell v. Insurance Co., 98 U.S. 85, 25 L.Ed. 52; Hayes v. Travelers' Insurance Co., 10 Cir., 93 F.2d 568, 125 A.L.R. 1053; Home Insurance Co. of New York v. Sullivan Machinery Co., 10 Cir., 64 F.2d 765; Commercial Casualty Insurance Co. v. Lawhead, 4 Cir., 62 F.2d 928; Kansas City Life Insurance Co. v. Cox, 6 Cir., 104 F.2d 321; Security Insurance Co. v. Deal, 175 Okla. 450, 53 P.2d 271; Commercial Casualty Insurance Co. v. Connellee, 156 Okla. 170, 9 P.2d 952; Commercial Casualty Insurance Co. v. Varner, 160 Okla. 141, 16 P.2d 118; Kansas Amusement Co. v. Maryland Casualty Co., 122 Kan. 800, 253 P. 405; Veitch v. Massachusetts Bonding Insurance Co., Mo.App., 226 S.W. 658; Connecticut Fire Insurance Co. v. Wigginton, 134 Ark. 152, 203 S.W. 844; Giammares v. Allemania Fire Insurance Co., 89 N.J. Eq. 460, 105 A. 611; Georgia Casualty Co. v. Bond-Foley Lumber Co., 187 Ky. 511, 219 S.W. 442; Journal Co. v. General Accident Fire Life Insurance Corp., 188 Wis. 140, 205 N.W. 800; Robinson v. Union Automobile Insurance Co., 112 Neb. 32, 198 N.W. 166; Merchants' Manufacturers' Inter-Insurance Alliance v. Hansen, Tex.Civ. App., 258 S.W. 257; Norem v. Iowa Implement Mutual Insurance Ass'n, 196 Iowa 983, 195 N.W. 725; Back v. People's National Fire Insurance Co., 97 Conn. 336, 116 A. 603; Couch on Insurance, Vol. 6, Sec. 1391 et seq.; 29 American Jurisprudence, Sec. 241. Hayes v. Travelers' Insurance Co., 10 Cir., 93 F.2d 568, 125 A.L.R. 1053; Kelly-Dempsey Co. v. Century Indemnity Co., 10 Cir., 77 F.2d 85; Columbian Na
Recovery upon a policy of insurance cannot be defeated because the insured fails to examine the policy and the application therefor promptly upon receipt of the same. The court announced this rule in substance in the case of Commercial Casualty Insurance Co. v. Varner, 160 Okla. 141, 16 P.2d 118, which case is quoted from further in this opinion. The question involved in this case, as we view it are:
It has long been the law in Oklahoma that an insured's failure to promptly examine a policy and discover departure from an insurance agent's assurances does not defeat reformation of the policy. Commercial Casualty Insurance Co. v. Varner, 160 Okl. 141, 16 P.2d 118 (1932), followed by Warner v. Continental Casualty Co., 534 P.2d 695 (Okla.App. 1975). Under Oklahoma law, an insured has no duty to read his written policy and notice discrepancies between it and previous representations of a soliciting agent. Warner, id. at 699.
In Ohio Casualty Ins. Co. v. Callaway, 10 Cir., 134 F.2d 788, 790, this court said: "Knie was a policy writing agent, and as such was authorized to enter into insurance contracts for and on behalf of the appellant, and his statements and conduct in connection therewith are binding upon his principal. Commercial Casualty Ins. Company v. Connellee, 156 Okla. 170, 9 P.2d 952; Home Insurance Company of New York v. Sullivan Machinery Company, 10 Cir., 64 F.2d 765; Westchester Fire Insurance Company v. Federal National Bank, 135 Okla. 47, 273 P. 889, 891; Commercial Casualty Insurance Company v. Varner, 160 Okla. 141, 16 P.2d 118; United States Fire Insurance Company of New York v. Rayburn, 183 Okla. 271, 81 P.2d 313. He knew the type and the kind of risk to be insured; he also knew that with the attached endorsement, the insured would not have full coverage, and he had, according to the testimony, agreed to write a policy covering every accident, every fire, and every damage. The insured relied upon his representations by accepting the policy and paying the premiums thereon, and having the same delivered to the bank along with the fire insurance policy.
"Where a policy of insurance, which has been drawn up by the agent of the insurer and merely accepted by the insured, does not represent the intention of both parties because of the fault or negligence of the agent, it may be reformed so as to express the contract as it was intended to be made." See, also, Commercial Casualty Ins. Co. v. Connellee, 156 Okla. 170, 9 P.2d 952; Commercial Casualty Ins. Co. v. Varner, 160 Okla. 141, 16 P.2d 118; Security Ins. Co. of New Haven, Conn., v. Deal, 175 Okla. 450, 53 P.2d 271. The rule likewise is well established in this Circuit.
This case must be reversed. The plaintiff relies on the case of Commercial Casualty Ins. Co. v. Varner, 160 Okla. 141, 16 P.2d 118, but the evidence in that case revealed that the agent was a policy writing agent which distinguishes it from the case at bar. The same is true for Phenix Ins. Co. of Brooklyn, N.Y. v. Ceaphus, 51 Okla. 89, 151 P. 568 and British American Assur. Co. v. Shores, 206 Okla. 300, 243 P.2d 343.
Local Federal's employee did not intend to have issued, nor did British America intend to issue, an invalid contract, one which would be of no benefit to the owners of the property. Where such a policy does not because of a mutual mistake of the parties contain the real contract entered into between them, it may be reformed to express the contract as it was intended to be made. Commercial Casualty Ins. Co. v. Connellee, 156 Okla. 170, 9 P.2d 952. See, also, Commercial Casualty Ins. Co. v. Varner, 160 Okla. 141, 16 P.2d 118; Security Insurance Co. of New Haven, Conn., v. Deal, 175 Okla. 450, 53 P.2d 271; Pellicano v. Hartford Fire Ins. Co., 211 Minn. 314, 1 N.W.2d 354; Cook v. Westchester Fire Ins. Co., 60 Neb. 127, 82 N.W. 315; Fadden v. Sun Ins. Office, Ltd., of London, 124 Neb. 712, 248 N.W. 62. British America next contends that the court erred in permitting Sally C. Shores to be joined as a party plaintiff during the trial.
When the facts are put in evidence, the presumption of negligence arising from the statute does not prevail, and the case must be decided in the usual course with the burden on the plaintiff to prove negligence. Stoeber v. Minneapolis, St. P. S. Ste. M.R. Co. 40 N.D. 121, 168 N.W. 562; Hodgins v. Railroad Co. 3 N.D. 382, 56 N.W. 139; Corbett v. Great Northern R. Co. 19 N.D. 450, 125 N.W. 1054; Smith v. Northern P.R. Co. 3 N.D. 17, 53 N.W. 173; Reinke v. Minneapolis, St. P. S. Ste. M.R. Co. 23 N.D. 182, 135 N.W. 779; Missouri, K.C. T.R. Co. v. Stephens, 16 P.2d 118. A charge which may lead the jury to believe that the defendant must make out its defense conclusively, or by undisputed evidence, is reversible error.
We also fail to find any merit in Continental's suggestion that Warner is now estopped from reforming the policy because he neglected to read it. See Commercial Casualty Insurance Co. v. Varner, 160 Okla. 141, 16 P.2d 118; Home Insurance Co. of New York v. Sullivan Machinery Co., 10 Cir., 64 F.2d 765; Columbian National Life Insurance Co. v. Black, 10 Cir., 35 F.2d 571. Although some courts are contra, the better view, and the majority view in our opinion, is that an insured can assume, without reading his policy, that it conforms to his agreement with the soliciting agent.