Appeal from the Superior Court of Cook County; the Hon. WALKER
BUTLER, Trial Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 11, 1962.
This is a chancery action for the reformation of an automobile insurance policy in order to reform the effective date of the policy from August 10, 1953 to August 8, 1953. The action was originally instituted in October, 1954 as a suit at law by plaintiffs Bentcliff and Skubick. The suit was amended into an action in chancery and Robert Mahon and Wanda Mahon were added as nominal plaintiffs, while State Farm's agent Robert Soffel was added as a defendant. The cause was referred to a Master who took testimony, received evidence and filed his Report. Defendants' objections to the Report were overruled, and on April 13, 1961 the court entered a Decree reforming the effective date of the policy from August 10 to August 8, and entered judgments in favor of plaintiffs Bentcliff and Skubick for $5000 each against State Farm and ordered said defendant to pay all Master's fees and costs. The Master in his Report recommended no judgment against the agent Soffel, and no judgment was entered against him.
The Mahons are the insured parties under the policy in question. Skubick and Bentcliff are beneficial plaintiffs by virtue of judgments obtained against the Mahons for injuries and damages incurred in an automobile accident on August 8, 1953 involving an automobile driven by plaintiff Wanda Mahon. Mahons and their attorney had been notified that State Farm would not defend them in the then pending suit. A default judgment was entered against Mahon and his wife for $10,000, and Mahon testified in this suit that he knew nothing about the default judgment until his deposition was taken in the instant case on April 29, 1955.
Defendant Soffel, as agent for State Farm, from time to time prior to August 8, 1953, attempted to solicit auto insurance business from the Mahons. He regarded the Mahons as "quality prospects." On the eventful August 8, 1953 Soffel arrived at the trailer occupied by the Mahons at approximately 10:30 a.m. Mr. Mahon was the only person there since his wife had taken his wallet and gone to the store. Soffel testified before the Master that he filled out an application for auto insurance from information obtained from Mr. Mahon, and that Mr. Mahon reviewed the application for accuracy and signed his name. Soffel further testified that Mr. Mahon then told him that he could not give him the $11 premium because he had no money with him in the trailer. On this point, however, Mr. Mahon testified that as soon as Soffel arrived at the trailer he told Soffel that he had no money because his wife had taken his wallet, and that Soffel nevertheless filled out the application and made the effective date of insurance coverage on the application to be August 8. Soffel agreed to come back later that day for the $11 premium but failed to do so because of trouble with his car. Mr. Mahon testified: "He said that he would be back later in the afternoon for the money and the reason that this was wrote up beforehand was so that I would be covered." Previously Mr. Mahon had also testified: "He wanted to sell me the insurance for the car now, and I told him my wife had just went shopping and she had taken all the money with her, and I didn't have any money, so I didn't see any reason for us to write up the insurance at that time. And he said, well, he said, `We can write up the policy now so you will be covered, and I can come back in the afternoon and get the money.'" There is no doubt from the testimony that the application was completed at this time, except that the initial premium was not paid and the agent Soffel did not detach and give to Mr. Mahon a form at the bottom of the application, which is called a "binder" and which also serves as a receipt for the premium payment. The original date on the application indicating the effective date of temporary coverage, until the application is accepted or rejected by the company, was August 8, 1953.
Ironically, Mrs. Mahon was involved in an accident at 12:30 p.m. on August 8, while driving the automobile that was the subject of the insurance policy. The accident occurred after the application had been completed and Soffel had left the Mahon trailer.
On August 10 Soffel returned to the trailer and Mrs. Mahon asked him if the insurance coverage was in effect on August 8. Both Mr. and Mrs. Mahon testified that Soffel stated that the coverage was effective on August 8. Soffel's testimony was conflicting as to how he responded to the question. At one time he testified that he said that there was no coverage; at another point he testified that he said "I don't know." In any event Soffel testified that he left the Mahons and consulted his district agent and then returned to the Mahons. On August 10, he collected the premium and detached the binder and gave it to the Mahons. The latter testified that on this date Soffel gave them a piece of paper but they did not read it and did not know the contents thereof. The binder was not introduced by the Mahons at the hearing since it had been either lost or destroyed. Soffel was impeached in two regards when testifying as to a purportedly true and accurate copy of the binder. The Master found Soffel's testimony ambiguous and conflicting as to the date he placed on the original binder, and that the coverage enumerated in the purported copy was incorrect.
There is no doubt that originally Soffel placed August 8 on the application as the effective date of the policy. Soffel then unilaterally changed the date from August 8 to August 10 by superimposing the number 10 over the 8. This unilateral alteration was made after the August 8 accident involving Mrs. Mahon. Two significant facts stand out that should be emphasized here. First, Soffel did not have the altered date initialed by the insured even though the normal procedure was to have all changes initialed. Secondly, the application even after the date was changed by Soffel listed only one prior accident involving Mr. Mahon in December of 1951, and did not mention the accident of August 8, 1953, in spite of the fact that the reverse side of the application calls for an accident record of the insured. Under that portion of the application there is no mention of the damage done to the Mahons' automobile as a result of the collision of August 8, nor is the accident itself mentioned in the application. As the Master concluded on this point: "It would appear that if the application was to be changed, as Soffel claims it was changed, the parties would have included all accidents that the Mahons had up to August 10, 1953, the date that Soffel claimed as the altered effective date."
The question presented here is whether there was an agreement between Mr. Mahon and agent Soffel that temporary coverage, pending acceptance or rejection of the application by the company, was to begin on August 8, and this in turn depends on the intention of the parties as evidenced by their conduct.
A policy of insurance dated August 10, 1953 was subsequently issued to Robert Mahon on August 20, 1953. Defendant admits that temporary insurance was extended but contends that the temporary insurance was limited to the period between August 10 and August 20 by virtue of the written binder.
[2-4] There is strong and convincing evidence that the parties agreed to begin temporary insurance coverage on August 8. This intention coupled with the agent Soffel's authority to extend temporary insurance (by a variety of methods including oral agreements, although the issuance of the written binder was the usual method) to quality prospects, which Soffel regarded the Mahons as being, resulted in the written instrument, which the Master reformed to conform to the actual intent of the parties. The fact in itself that the premium was not yet paid does not negate this agreement for temporary coverage, and the right to recover on the policy would not be defeated. Firemen's Ins. Co. v. Kuessner, 164 Ill. 275, 281, 45 N.E. 540; cf. Cohn v. Mechanics & Traders Ins. Co., 175 Ill. App. 594, 598.
[5-7] It is plausible that Soffel did not detach the binder on August 8 because the binder also served as a receipt while at the same time extending to the Mahons temporary insurance coverage beginning immediately. The Master regarded the testimony of both of the Mahons as consistent and that it should be given credence, whereas he regarded the testimony of Soffel as inconsistent and unreliable. The Master properly admitted parol evidence to explain the unilateral changing of the effective date without the consent of the insured. Parol evidence is admissible in a court of equity to show the real agreement between the parties in variation of the terms of the written agreement and when a mistake is thus corrected the contract will be enforced as corrected. Mercantile Ins. Co. v. Jaynes, 87 Ill. 199, 202; Krabbenhoft v. Gossau, 337 Ill. 396 at 408, 409, 169 N.E. 258; 29 Am Jur, Reformation §§ 340, 341; 76 CJS Reformation § 83(b).
Plaintiff does not contend that the agreement entered into on August 8, 1953 was the policy of insurance itself. Therefore, defendants' argument that the agent Soffel had no authority to issue policies of insurance is beside the point. Soffel was authorized to solicit on a quality basis and to extend temporary coverage by a variety of methods. Plaintiff does maintain, and this was supported by competent evidence before the Master, that there was an agreement for temporary coverage as of August 8, 1953, and that this was to be a term of the policy itself.
The admitted practice of agent Soffel, and company policy as described by both Soffel and Charles Foreman, general underwriting superintendent, prove that there was authority of the agent to bind the company on the completion of the ...