Citation Numbers: 175 A. 492, 316 Pa. 444
Judges: OPINION BY MR. JUSTICE DREW, November 26, 1934:
Filed Date: 10/1/1934
Status: Precedential
Modified Date: 1/13/2023
This is an action of assumpsit to reform a policy of insurance, issued by the defendant company to the plaintiff, Samuel Broida, and to recover on it as reformed. *Page 446 From judgment entered on the verdict, defendant appealed, assigning as error the refusal of its motions for binding instructions and for judgment n. o. v.
On or about April 16, 1931, plaintiff decided to remodel and enlarge a certain building in Burgettstown, Washington County, owned by him and occupied by The Great Atlantic Pacific Tea Company as tenant. He applied to the defendant for a policy of public liability insurance to protect him and his tenant against claims for damages arising out of any accident that might happen on the work. A few days after the policy was issued an accident occurred to Harold Day, the use plaintiff, as a result of the negligence of an employee of the plaintiff. The defendant denied liability for the reason that plaintiff was doing the work himself, which was not in accordance with the policy, the terms of which provided that the work was to be done by an independent contractor. After Day had recovered a judgment against Broida for $6,500 and defendant had refused to pay it, this action was brought to recover that amount, with costs.
At the trial, plaintiff testified that he met the agent of the defendant, took him into the store room, showed him what he intended to do, and said, "I am going to do the work myself, I have bought the material already and the material is on the premises, and I have hired my men, and I want a policy — liability policy that will protect me from anyone getting injured on the premises, or anybody that works around here." He stated that the agent then said: "I know what you want; I know exactly what you want. You are covered; you can put your men to work." Two witnesses, called by plaintiff, testified that they heard this conversation, and corroborated his account of it. On the other hand, plaintiff's story was denied by defendant's agent, who said that no such statements were made to him, but that it had been stated that the work was to be done by an independent contractor. *Page 447
It is a well known general rule that where parties have come to a mutual understanding as to the terms to be embodied in a proposed written contract or conveyance, and the writing executed is at variance with that understanding, it will be reformed to express their intention: Hamilton v. Asslin, 14 S. R. 448; Gower v. Sterner, 2 Whart. 75; Baab v. Houser,
Nor can we agree with defendant's contention that the evidence is not clear, precise and indubitable. It may be conceded at once that it is necessary for this to be true before reformation can properly be granted: see Stine v. Sherk, 1 W. S. 195; Sylvius v. Kosek,
Defendant also contends that plaintiff is barred from reformation by his own negligence. This argument is based on the admitted fact that the policy was delivered to plaintiff some time before the accident, and that he made no examination of it but put it in his safe without looking at it. However, where the elements required for reformation are otherwise present, even negligent failure of plaintiff to discover the variance between the instrument as written and the mutual understanding of the parties is not fatal to his right to have it reformed: Haines v. Stare,
Judgment affirmed. *Page 449
Rowand v. Finney , 96 Pa. 192 ( 1880 )
Sylvius v. Kosek , 117 Pa. 67 ( 1887 )
Honesdale Glass Co. v. Storms , 125 Pa. 268 ( 1889 )
Baab v. Houser , 203 Pa. 470 ( 1902 )
Highlands v. Philadelphia & Reading Railroad , 209 Pa. 286 ( 1904 )
Graham v. Carnegie Steel Co. , 217 Pa. 34 ( 1907 )
Burt v. Burt , 221 Pa. 171 ( 1908 )
Haines v. Stare , 249 Pa. 494 ( 1915 )
Easton v. Washington County Insurance , 391 Pa. 28 ( 1957 )
Thomas v. SEAMAN , 451 Pa. 347 ( 1973 )
Bayout v. Bayout , 373 Pa. 549 ( 1953 )
In Re Estate of Fickert , 461 Pa. 653 ( 1975 )
Bugen v. New York Life Insurance , 408 Pa. 472 ( 1962 )
General Electric Credit Corp. v. Aetna Casualty & Surety Co. , 437 Pa. 463 ( 1970 )
Mellinger's Estate , 334 Pa. 180 ( 1939 )
Lucas v. Gibson , 341 Pa. 427 ( 1941 )
Barrows v. Allum , 361 Pa. 624 ( 1949 )
Aliquippa National Bank v. Harvey , 340 Pa. 223 ( 1940 )
Bieranowski v. Bieranowski , 345 Pa. 447 ( 1942 )
Goldstein Co. v. Greenberg, Inc. , 352 Pa. 259 ( 1945 )
Gilberti v. Coraopolis Trust Co. , 342 Pa. 161 ( 1941 )
Kratsas, Admr. v. Mugianis , 324 Pa. 452 ( 1936 )
Foley, Exr. v. Wasserman , 319 Pa. 420 ( 1934 )
Scanlon v. Pittsburgh Rys. Co. , 319 Pa. 477 ( 1935 )
B. Axe Enterprises v. Northeastern Fire Insurance , 446 Pa. 119 ( 1971 )
In Re Estate of Lux , 480 Pa. 256 ( 1978 )
In Re Estate of Pedrick , 505 Pa. 530 ( 1984 )