246 N.W. 477 | Minn. | 1933
The court made findings of fact and conclusions of law directing a reformation of the policy as asked by the plaintiffs and a recovery of the amount claimed by each. The defendant separately appealed from the orders denying its motions for a new trial.
1. Jackson owned an auto which stood in the name of Olsen. It was a model T Ford. He, Jackson, applied for and paid the insurance on it for the year from October 16, 1928, to October 16, 1929. He traded the model T for a model A. He gave a mortgage on the model A for the difference. He instructed Worcester, the agent of the defendant at Duluth, to have the insurance for the new auto in his name, and returned the policy on the old auto to Worcester. The insurance coming from the old policy was to be applied on the new. *50
It is conceded that the title to the new auto was in the name of Jackson. He had a bill of sale from the owner. This bill of sale, so he says, he gave to Worcester to help in making out the data for the new policy, and that Worcester had all the papers at hand. Worcester denies any arrangement for the substitution of the name of Jackson in the new policy, and when he made it out he put Olsen in as owner.
The trial court found:
"That said policy of insurance was issued in the name of one Sverre A. Olsen; that it was issued for the unexpired term of a similar policy issued on or about October 16, 1928, in the name of said Sverre A. Olsen on a different automobile than the one described in said policy dated March 12, 1929, which said latter automobile was also owned by said Edgar T. Jackson; that the issuance of said policy dated March 12, 1929, in the name of said Olsen instead of in the name of said Jackson was due to the inadvertence and mistake of the said defendant and was contrary to the instructions of said Jackson to said defendant; that at all times after on or about January 10, 1929, it was the intention of the defendant and of said Jackson to insure said Jackson as the owner of the automobile described in said policy of March 12, 1929, against liability to others growing out of its operation by said Jackson; and that said Olsen never had any interest in either automobile described in either of said insurance policies dated October 16, 1928, and March 12, 1929, nor in either of said policies."
Aside from the testimony of Jackson and Worcester, there was none of great importance. There were a few circumstances making one way or the other. The question was one of fact for the court. It could believe one witness rather than the other, and the record does not indicate that the finding was not one properly made.
2. To reform a written instrument the evidence must be clear, persuasive, and convincing; or the same thought may be expressed in different words, but they must not go so far as to require proof beyond a reasonable doubt. Sloan v. Becker,
3. In applying this rule, effect is still given to the rule that the court will not on appeal disturb the findings of the trial court unless they are manifestly contrary to the evidence viewed as the trial court should view it. Oertel v. Pierce,
Orders affirmed. *52