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Opinion, per JOHNSON, J.

of a mistake, it is necessary that the mistake should be shown by clear and convincing proof, and shown to be mutual.

The finding of the court of appeals was that Dillaby was the agent of the defendant and the other insurance companies and was acting for them in obtaining the insurance covering the property of the plaintiff; that the insurance was solicited by Dillaby; that it was the intention of the plaintiff to insure all of its patterns in or upon the premises of the Mowry Company; that this fact was known to and understood by Dillaby; and that the use of the word "building" instead of the word "buildings” in the policy was through inadvertence or mistake of the parties.

The things necessary to authorize the reformation of the contract were, therefore, found by the court to exist. The court below weighed the evidence with the benefit of a full knowledge of the situation and the presence of the witnesses, and from an examination of the record we are not able to say that the finding of the court was not sustained by the required degree of proof. On the contrary we find that it is amply justified.

The total value of all of the patterns was between $2400 and $2500, of which those to the value of $2200 were in the frame building and the remainder in the brick building. Those in daily use in the foundry had a value of about $200. The total insurance upon the patterns in the brick and frame buildings amounted to $1800, to which was added $200 insurance while in use in the foundry.

Opinion, per JOHNSON, J.

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It will be seen that if defendant's contention is correct, the parties not only intended to contract for $1800 insurance on about $300 worth of patterns in the brick building, but for no insurance whatever on the $2200 worth of patterns in the frame building

When the insurance companies issued the policies, solicited by Dillaby, under the circumstances shown in the findings, he must be held to be their agent.

Section 9586, General Code, provides: “A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party, company or association, thereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding

In the negotiation leading up to the making of the contract the agent had such incidental power as was necessary to carry his authority into effect, and if by the mutual mistake of the agent and the insured the word “building” was used, when the parties intended to use the word "buildings,” the mistake of the agent was the mistake of the company, and, the mistake being mutual, the insured is entitled to have the contract reformed so as to state the truth and conform to the intention of the parties.

In Insurance Co. v. Williams, 39 Ohio St., 584, it is held that if the agent make a mistake in wrongly stating facts which were correctly given him by the insured in preparing the application, the

Opinion, per JOHNSON, J.

company is bound by and responsible for such mistake. In that case the contract was reformed and the company held to the "correct facts of the application and the actual contract made."

As to the claim of the plaintiff in error with reference to the 80 per cent. co-insurance clause, the court of appeals also found that the terms of the policy with reference to this clause were fully complied with by the plaintiff.

The judgment of the court of appeals will be affirmed.

Judgment affirmed.


Opinion Per Curiam.



Public utilities commission - Rates on ice cream shipments and

returned containers Lawfulness and reasonableness of order.

(No. 15449

Decided June 26, 1917.)

ERROR to the Public Utilities Commission.

Mr. Harry C. Barnes and Mr. John J. Chester, for plaintiff in error.

Mr. Joseph McGhee, attorney general; Mr. Freeman T. Eagleson and Mr. Branch P. Kerfoot, for defendant in error.

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BY THE Court. In 1916, The American Express Company, in connection with The National Express Company, The Adams Express Company, and Wells-Fargo & Company Express, in and by their certain tariff publications filed with the Public Utilities Commission of Ohio, to become effective July 1, 1916, sought the cancellation of the then existing rates on the shipment of ice cream in the state of Ohio and returned empty containers in intrastate traffic in the state of Ohio, and the establishment of the interstate schedule of rates on these commodities. On June 14, 1916, plaintiff in error, a voluntary association of persons and firms engaged in the wholesale manufacture of ice cream in the state of Ohio, filed a complaint with the Utilities Commission in which it alleged that the proposed new rates of the express companies were

Opinion Per Curiam.

largely in excess of the existing rates, and unjust, discriminatory and unreasonable, and would impose an undue burden upon such traffic and necessarily raise the price to the consumer and lessen the production and consumption of a healthful, wholesome and nutritious food product. The prayer of the complaint was that the Commission suspend the operation of the schedules which were to become effective July 1, 1916, and postpone the use and operation of such rates and charges pending a full hearing and investigation concerning the propriety of such rates and charges.

On July 19, 1916, the matter was heard before the Commission upon the original papers and the evidence, and on September 26, 1916, the Commission held that the increased rates and charges as proposed in the schedules in said proceeding were just and reasonable and ordered that the orders theretofore entered in said proceeding suspending the operation of the said schedules be vacated and set aside. An application for a rehearing was denied on October 30, 1916, and plaintiff in error thereupon filed a petition in this court asking that the final order of the Commission be reversed, vacated or modified.

There have been filed in this court a transcript of the journal entries, the original papers, and a certified transcript of all the evidence adduced in the hearing before the Commission.

We have examined the evidence, consisting of exhibits and the testimony of a number of witnesses, bearing upon the question of the fairness and reasonableness of the rates proposed by the

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