Upon reconsideration of this cause I am persuaded the decree of the chancellor should be affirmed. To justify a decree of reformation of a written instrument all the authorities recognize that a high degree of proof is required.
Complainant must show "by clear, exact, and convincing proof that the intention and agreement he would have substituted in the instrument was that of both parties thereto." Holland Blow Stave Co. v. Barclay et al., 193 Ala. 200, 69 So. 118, 120. And if the proof is uncertain in any material respect it will be held insufficient. Hertzler, Jr. v. Stevens, 119 Ala. 333,24 So. 521.
In the exercise of this jurisdiction the equity court proceeds with the utmost caution, as it involves the invasion of a salutary rule of evidence, prevailing at law and in equity. Holland Blow Stave Co. v. Barclay et al., supra; Campbell v. Hatchett, 55 Ala. 548; National Union Fire Ins. Co. v. Lassetter et al., 224 Ala. 649, 141 So. 645.
Re-examination of the record is to my mind persuasive that at the most the evidence as to any mutuality of mistake in the policies is contradictory, confused and uncertain. Missouri State Life Ins. Co. v. Finn et al., 225 Ala. 672, 145 So. 141; Lockhart v. Cameron, 29 Ala. 355.
Indeed the basic evidence as to which was the "old" and which the "new" truck is confusing, as disclosed by the record evidence of the date of the purchase of the two trucks found stated in the policies, from information, it seems given by complainants to the insurance agent at the time, which appears to be contradictory of the testimony of complainant at the trial some few years afterwards. And the trial court could properly consider also the fact that on the same afternoon of the fatal accident to the child, complainant sent their agent Richardson with a check for the premium on the "United" (to so designate it) policy, though the premium was not yet due for thirty days, and as indicating a belief on complainant's part that the "United" policy covered the truck involved in the accident.
It is clear enough also that the agents wrote down in the policies the motor number of the trucks as given them by complainant. Both trucks traveled to Birmingham, though one more than the other. But as to each, such traffic was within the permissible range of the policies, and the trial court, under the evidence, could well conclude that the difference in the premium rate as to these two policies was in no manner due to the fact that one company was stronger financially than the other, or that one truck was to travel to Birmingham more often than the other, but that such difference was due entirely to other causes. But further discussion of the evidence is unnecessary.
Suffice it is to say that the evidence as to any mutuality of mistake to justify the reformation of these policies is uncertain and confusing and by no means clear and convincing as the rule requires.
Added to the strict rule of a high degree of proof required in cases of reformation, is the other rule applicable where the trial court's decision on the facts is rested upon testimony taken orally before him and where he had the advantage of noticing the demeanor of the witnesses on the stand. His finding is to be given the weight of a jury verdict and to be overturned only when the court is convinced that the conclusion reached is plainly and palpably wrong. Patterson v. First National Bank, 229 Ala. 406, 157 So. 446.
After a re-examination of the record I find myself unable to say that the court's finding that complainant has failed to meet the burden of the high degree of proof required in such cases is plainly and palpably wrong. I conclude, therefore, that the disturbance of such finding of fact as *Page 193 evidenced by the decree rendered is not justified and that of consequence the rehearing should be granted and the decree here affirmed.
I, therefore, respectfully dissent and am authorized to state Mr. Justice BROWN and Mr. Justice LIVINGSTON concur in these views.