Richards v. Hale

1 Ohio C.C. (n.s.) 181

• Court: Ohio Circuit Courts
• Decided: January 15, 1903
• Status: Published

Opinions

The action in the court below was a suit brought by the receiver of the Aetna Fire Association of Cincinnati, Ohio, an insolvent' mutual insurance company, to recover an assessment or assessments from the defendant, who is 'alleged to be a .policy holder in the company, the assessments having been ordered by the Court' of Common Pleas of Hamilton County, as necessary to pay debts. The petition for that purpose is in the ordinary form. The 'answer denies that the defendant ever made application for or accepted any policy in the company or ever became a member thereof, and therefore denies .that he is liable to such assessment. The reply is that the policy contained an express provision that he should be liable to assessment; that he accepted and held a policy in the company for the full term it' was to be in force, and th'at therefore he is es-topped to deny liability. In the progress of the trial in the court of common pleas, the plaintiff introduced a printed application in the usual form for a policy in the Aetna Fire Association of Cincinnati, Ohio, signed by the defendant with the terms of insurance written therein. The defendant admitted the signature to the application, and produced at the trial a policy in that company issued in accordance with it's terms. He did not claim that the written terms in the application, as distinguished from the printed terms, were other than those agreed upon, but he claimed that as to them, he signed the application in blank. He was then permitted to testify over the objection of the plaintiff that at the time he signed the application he told the agent of the company who solicited the insurance that he did not want insurance in an assessment company, but wanted it placed in an old line company, and that the agent represented to him that he .was to have insurance in the Aetna Fire Insurance - Company of Hartford, which had a branch office in Cincinnati.

In the absence of a plea of fraud or mistake, the evidence was incompetent. Its effect was to contradict and vary by parol evidence the terms of a written contract. The attitude of the defendant under the admitted facts was, not that there was no contract entered into, but that the contract signed was not’ the true contract, and he was estopped to deny the terms of the application he signed unless it could be impeached for fraud or mistake.

It appears that' the policy in question was at the 'direction of the defendant delivered to the cashier of the City Bank of Findlay, Ohio, who, by his authorisation, paid the premium therefor out of th.e funds of the defendant and held the policy as collateral security to secure a loan made by the bank t'o the defendant. The policy stipulated by its terms at the request of the defendant that the loss, if any,- should be paid to the bank as its interest might appear. The bank held the policy until it had subserved its purpose as collateral, and until some time in April, 1895, at which time the defendant received notice of the assessments- sued upon. It was thereafter held by the defendant for the remainder of its term, which was a year from July 19, 1894, and up to the time of the trial in court below, he still held it in his possession.

Under such a state of facts, the defendant is estopped to say that he did not know its contents, and to deny, against the creditors of' the company, as he would be against the bank while it held it as collateral, or against the company itself, that he entered into the contract.

It follows, therefore, that there was error in the admission of parol evidence to contradict and vary the terms of a written contract. The trial court seems to have admitted it upon the theory -that the issues might be changed to conform to the facts. But they were not changed, and it would have been prejudicial error to-so change them without notice in time for the plaintiff to prepare to meet such an issue.

There was error in the charge of the court, as touching the liability of the defendant upon a finding that he had received and held the policy. The charge of the court was:

“If you find that defendant in this case became a member of this association by taking out a policy and holding it, hnotving that it was a policy in a mutual association of this hind, then your verdict will be for the amount claimed in the petition against the defendant.”

The jury should have been instructed that if he did receive and hold the policy during the time it was in force by its terms, he was charged with knowledge of its contents,, and would be bound by it. The verdict and judgment are against the weight of evidence. Upon the evidence in the record they should have been for the plaintiff.

The judgment is reversed and the cause remanded for new trial.