Petitioner seeks the annulment of an award made by the respondent commission in favor of Richard F. Lee and against the petitioner.
The question of the propriety of the сommission’s action in reforming the policy of insurance issued by petitioner is the sole question presented. There is no material conflict in the evidence.
J. C. McMahon was the lessee of certain premises in El Cerrito upon which was operated a “night club” known as the Wagon Wheel. He operated the “club room” in the back portion of thе building and he subleased to Charles Thomas the entire front portion, consisting of the bar and thе dining room. The policy of insurance was issued to “ J. C. McMahon and Charles Thomas, jointly and not severally, a copartnership, doing business as Wagon Wheel”. The undisputed evidence shows that no partnership existed at any time and that Lee, the injured employee, wаs in the employ of Thomas. The commission made its order that the policy “be reformеd to express the true intent of the parties and to cover J. C. McMahon and Charles Thоmas as individuals”.
Petitioner contends that the commission acted without and in excess of its рowers as there was no evidence to sustain its order reforming said policy. Upon the record before us, we are of the opinion that this contention must be sustained.
It is cоnceded that the commission has jurisdiction to reform a policy of insurance upon a proper showing. (Bankers Indem. Ins. Co. v. Industrial Acc. Com., 4 Cal. (2d) 89 [
No authority has beеn called to our attention dealing with a policy which insured two or more persons “jointly and not severally” as a copartnership. Such was the provision of the poliсy here. It appears probable that this pol
The record before us is utterly devoid of any evidence warranting reformation. Under section 3399 of the Civil Code, reformation can be had only “When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at thе time knew or suspected, a written contract does not truly express the intention of thе parties, . . . ” It is apparently conceded that the reformation was ordered upon the theory that through “mutual mistake”, the policy as written did not “truly express the intention of thе parties”. But there is not a particle of evidence showing the intention of petitiоner, or of any agent or employee of petitioner, other than the intention shоwn by the wording of the policy itself. The intention of petitioner, as clearly manifested by thе policy, was ■ an intention to insure only against the liability of a copartnership as еmployer and not against the liability of either of the named individuals as employer. As there never was any partnership in existence, it was undoubtedly the intention of McMahon and Thоmas to obtain insurance which would insure against their liability as individual employers. But in the absence of any evidence of petitioner’s intention, other than that shown by the policy, the only conclusion which can be reached is that the minds of the parties never met. Thеre could not therefore be a reformation to “truly express the intention of the parties”, for there was no evidence to show a common intent. A showing of a commоn intent is essential where it is sought to reform a contract on the ground of mutual mistake. (Mcyerstein v. Burke,
Nourse, P. J., and Sturtevant, J., concurred.