Mitchell v. Capital City Insurance

110 Ala. 583 | Ala. | 1895

COLEMAN, J.

The purpose of the bill is to reform and correct two several policies of insurance as to their dates. The policies bear date 20fch of December, 1889, and by their terms expire -20th December, 1890. The storehouse and goods insured were destroyed by fire on the 22d of December, 1890, two days after the expiration of the policies, according to the period expressed in the policies. The bill avers that the policies were in fact issued on the 28th day of December, 1889, and prays that they be corrected and reformed so as to express the correct date.

There are no new questions of law involved, and the case is one of evidence. The burden was on the complainant to show by evidence, that was “clear, exact and convincing”, “clear and satisfactory,” that the policies do not truly state the facts.—Ohlander v. Dexter, 97 Ala. 476; Guilmartin v. Urquhart, 82 Ala. 570; Trapp v. Moore, 21 Ala. 697; Burnell v. Morris, 106 Ala. 349.

Complainant and one Loebwere examined in support of the bill. Complainant testifies that he applied for a policy on the 20 th of December, 1889, but that the respondent refused to issue a policy until he- had furnished-a diagram showing the relative location of the storehouse, and an invoice of the goods, and that he fowajrded these (we presume by mail) on the 27th of December. He infers they were received on the 28th, and presumes, therefore, the policies were issued on that day. The evidence of the witness Loeb is hardly as definite as that of complainant. For the respondent, the witness Dowdell testifies that complainant applied for insurance for the sum of nineteen hundred dollars on his storehouse and merchandise; that not being willing to carry more than half the amount in the Capital City Insurance Co., at the instance and request of Mr. Mitchell, he procured the additional insurance, through Messrs. Trimble & Co., in the Planters & Merchants Insurance Company of Mobile; that he drew up one application and Ellsberry drew up the other ; that a diagram of the house was furnished at the time, which was attached to the application ; that Mr. Mitchell stated he did not know the amount of stock of goods on hand, but he knew there was oyer three thousand dollars, and this amount was inserted in the policy, and the policies were issued on that day. The complainant left instructions to turn the policies over to Loeb for him, and this was done some time in January, by whom they were forwarded to complainant, in whose possession they had remained ever since. The applications dated December 20th with diagram attached, signed by complainant, were in evidence. We do not doubt that if the storehouse and goods had been destroyed on the 25th of December, 1889, with the evidence before us in this record, it would fix a liability upon the respondent for the loss. Certainly the evidence fbr complainant falls far short of that required to correct and reform a’written instrument.

Affirmed.