198 A.D. 408 | N.Y. App. Div. | 1921
The complaint was dismissed at the trial on the complaint and opening and before any evidence was received. The opening is not included in the record. The question, therefore, is as to the sufficiency of the complaint.
The action is brought on a policy of insurance issued by the respondent to the defendant Mason on an automobile owned by him insuring him against loss by fire or theft. The automobile was destroyed by fire after the policy was issued. The plaintiff had a claim against Mason for the unpaid purchase price of the automobile and the policy contained a provision that the loss, if any, should be payable to the plaintiff as its interest might appear. Under such a provision in the policy the plaintiff stands in no better position than the insured and cannot recover unless there could be a recovery by the insured. (Williams v. Pioneer Co-operative Fire Ins. Co., 183 App. Div. 826, 831; Moore v. Hanover Fire Ins. Co., 141 N. Y. 219, 223.)
A copy of the policy is attached to and forms a part of the complaint. It appears therefrom that it shall be null and void if the automobile is used for carrying passengers for compensa
The plaintiff has alleged in its complaint the facts which it claims constitute such waiver or estoppel. The question for determination is whether such facts so alleged considered in the light of the policy have the effect claimed by the plaintiff.
Breese, Rousseau & Co. were the agents of the defendant duly authorized to execute, issue and deliver policies. They countersigned the policy in question and delivered it to the assured. The policy provided that it should not be valid unless countersigned by a duly authorized agent of the company.
The parties agreed in the policy as follows: “ No officer, agent or other representative of this company shall have power to waive any of the terms of this policy unless such waiver be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the assured unless so written or attached. ’ ’ The effect of such a stipulation has been frequently discussed. It is well established by authority that under it an agent may not effect a waiver unles.s it is written upon or attached to the policy as therein provided. (Quinlan v. Providence Washington Ins. Co., 133 N. Y. 356; Gray v. Germania Fire Ins. Co., 155 id. 180; Moore v. Hanover Fire Ins. Co., 141 id. 219, 224; Baumgartel v. Providence Washington Ins. Co., 136 id. 547.)
The foregoing authorities, however, do not hold that the company itself as distinguished from its officers or agents may not orally waive a forfeiture of the policy nor by its acts and conduct estop itself from asserting the same. In Walsh v. Hartford Fire Ins. Co. (73 N. Y. 5) the policy was forfeited because, contrary to its provisions, the insured premises remained vacant for more than fifteen days without consent indorsed on the policy. As in this case there was a provision that no officer, agent or representative of the company should be held to have waived any of the provisions of the policy unless such waiver was indorsed thereon in writing. The court held that by virtue of such provision an agent could not orally create a waiver but stated in its opinion as follows:
In Pechner v. Phoenix Ins. Co. (65 N. Y. 195) the court stated the question as follows: “ The main question in the cause is whether the policy is void because there was other insurance upon the property without the written consent of the defendant.” There was no restriction as in this case on the power of an agent to waive the terms of the policy and after holding that Scott, the agent, had waived the requirement for written consent as to other insurance, the court continued as follows: “ Had the company itself, at its principal office, treated the plaintiff as Scott did, assuring him that the transaction was right, I think it clear, both upon principle and authority, that it would have been estopped from setting up in its defense that the condition requiring a written indorsement on the policy had not been complied with. The plaintiff must have relied upon such a statement. It is not conceivable otherwise that he would have left matters in the informal condition in which they stood when the loss occurred. Within all the authorities cited, a practical fraud would be perpetrated upon him if the insurers were then allowed to repudiate the policy.”
In Pitney v. Glens Falls Ins. Co. (65 N. Y. 6) there was a provision prohibiting other insurance unless consent therefor was indorsed on the policy. Knowledge of such other insurance was brought home to the company but no written consent was granted. The court holding that the insurer had an election either to cancel the policy or retain the premium said: “ This election should have been exercised within a
In Steen v. Niagara Fire Ins. Co. (89 N. Y. 315) a forfeiture was claimed because the property had remained vacant without written consent, but the court said: “ The company itself could dispense with the condition by oral consent, as well as by writing, and the general agent, unless specially restricted, could do the same.”
In the present case the policy restricted the power of an agent to waive any of its terms except in writing. There is a clear distinction between what an agent may do under the provision in this policy limiting his authority and what the company itself may do. Such provision does not purport to apply to the company. If it did the latter might waive it. Generally speaking a party may ordinarily waive any provision in a contract intended for his benefit. No different rule exists in regard to an insurance company. (Bishop v. A. Ins. Co., 130 N. Y. 488; Gibson El. Co. v. Liverpool & L. & G. Ins. Co., 159 id. 418, and cases there cited.) In the present case the company has prohibited its agents from orally waiving any of the terms of the policy. It does not follow, however, that the company itself may not waive such prohibition and orally waive any other condition of the policy or by its conduct estop itself from asserting a forfeiture thereof. That such distinction exists seems to be established by the cases cited.
It is doubtless true, therefore, as claimed by the respondent, that its agents were powerless to orally waive any of the provisions of the policy. The plaintiff, however, according to its complaint, does not rely on such waiver but on a waiver
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
John M. Kellogg, P. J., H. T. Kellogg, Kiley and Van Kirk, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.