Genuser v. Ocean Accident & Guarantee Corp.

SPENCE, J.

Plaintiff sued for reformation of a policy of insurance. The. trial court sustained a demurrer to plaintiff’s amended complaint and thereafter entered judgment in favor of defendant. Plaintiff appeals from said judgment. On November 6, 1937, defendant issued a policy of automobile insurance to plaintiff describing the automobile therein as a 1933 Ford automobile coupe bearing motor number 18-447073. Plaintiff sought by this action to have said policy reformed upon the ground of mistake claiming that said automobile should have been described in the policy as a 1934 de luxe Ford coupe bearing motor number 18-075524.

Section 3399 of the Civil Code provides, “When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised, on the application of a party aggrieved, so as to express that intention ... ”,

Plaintiff alleged numerous facts purporting to show how the mistake occurred and further alleged as follows:

“That it was the intention of the plaintiff and defendant, The Ocean Accident and Guarantee Corporation, Limited, to insure the plaintiff from liability caused by accident, as aforesaid, arising out of the use, ownership and maintenance of an automobile owned by plaintiff and in which he had an insurable interest, to wit, a 1934 de luxe Ford coupe, motor number 18-075524, and not to insure the plaintiff from liability in connection with the use, ownership and maintenance of any automobile not owned or operated by him or in which or the use of which he had no insurable interest. That through the mistake of plaintiff, known to defendant, a policy of insurance was issued upon an automobile which the plaintiff did not own or was not operating or in which he had no insurable interest. That each of plaintiff and said defendant, The Ocean Accident and Guarantee Corporation, Limited, intended and agreed that the legal consequences of their acts should be the indemnification of plaintiff against loss and damage from bodily injury and injury to or destruction of property caused by accident in the amounts hereinabove specified, arising out of the ownership, maintenance or use of an automobile which plaintiff then owned, to wit, a

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