10 F. Cas. 891 | U.S. Circuit Court for the District of Eastern New York | 1879
This case •comes before the court upon a motion for a ■new trial. The action is brought upon a policy of insurance, to recover for the destruction, by fire, of certain lumber belonging to the plaintiffs [William It. Grace and ■others]. A trial was had before the court and a jury, when a verdict was rendered for the defendant [Case No. 5,049.] The plaintiffs now move for a- new trial, upon exceptions to certain rulings of the court made at the trial.
The evidence shows, that the plaintiffs had Instructed one Noyes, an insurance broker in New York,: to procure for • him insurance, to a large amount, upon a quantity of lumber. Noyes employed P. H. Anthony, also •an insurance broker, to • effect insurance in Brooklyn; and, accordingly, Anthony procured several policies in the name of the plaintiffs. Among them was the policy in suit, which, when procured, was passed to the possession of the plaintiffs. This policy contained the following clause: “8. This insurance may be terminated at any time at the request of the assured, in which case the company shall retain only ■ the customary short rates for the time the policy has been In force. The insurance may also be terminated at any time at the option of the company, on giving notice to that effect, and refunding a ratable proportion of the premium, for the unexpired term of the policy. It is a part of the contract, that any person other 'than the assured, who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy, and not ■of this company, under any circumstances whatever, or in any transaction relating to this insurance.” A few days after the delivery of this policy, the defendant notified Anthony of its election to terminate the policy at that time. Anthony accepted the notice, and promised to return the policy. On the following night a fire occurred, by which the property insured was destroyed. At. the time of the fire, the plaintiffs had no knowledge of what had taken place between the defendant and Anthony, in regard to terminating the insurance. Upon these facts the plaintiffs requested the court to instruct the jury to find a verdict for the plaintiffs, for the amount of the policy, $5,447 37. The request was refused, and the plaintiffs excepted. This exception presents, for determination, the main question in dispute between these parties, viz.: whether the notice •of termination of the insurance given by the defendant to the broker, Anthony, and accepted by the latter in behalf of the plaintiffs, had the legal effect to terminate the insurance. If such was the effect of that notice, the ruling in question was right. If such was not its effect, a verdict for the plain, tiffs for $5,447 37 should have been directed, as requested by the plaintiffs.
Upon this question my opinion is, that the insurance was terminated by the notice of termination given to the broker, Anthony, and that the ruling excepted to was right. The contention on the part of the plaintiffs is, that Anthony was not the agent of the plaintiffs for the purpose of accepting notice of termination of the insurance, and, therefore, the notice given to Anthony could not affect the plaintiffs’ rights under the policy. The contention on the part of the defendant is, that the effect of the 8th clause of the policy, above set forth, was to enable the insurer tp terminate the insurance at any time, by giving notice to the person who procured the insurance to be taken; and that Anthony was such person. The determination of this question depends upon the effect to be given to the 8th clause of the policy, above set forth. "In considering this clause, it will be observed, that the apparent object of the clause is to provide
. Evidence of the practice in regard to giving notice of termination of the risk having been admitted, the plaintiffs offered to show, that when, in accordance with that practice, notice is given to the broker, the understanding is, that the notice does not take effect until a reasonable time has elapsed. This-offer was rejected, and the correctness of that ruling is also called in question upon this motion. The reason for the rejection of the plaintiffs’ offer was, that it was an attempt, by evidence of usage, to change the contract which the parties had made. The agreement-in the policy is, that the insurance is to be terminated when notice to that effect is given.' The policy does not provide for any lapse of time after the giving of the notice, during which the insurer is to be bound. On the contrary, the contract states that the insurance-terminates on giving the notice. The evidence offered by the plaintiffs was, therefore, immaterial, and the plaintiffs take nothing by their exception to the exclusion of their offer.
There remains the question, whether the evidence shows Anthony to be the person who procured the insurance to be taken, within the meaning of the 8th clause of the policy. As to this, there is no room for doubt. The only person known to the defendant, as the person procuring the insurance, was Anthony. The principals never met. Anthony procured the-insurance, the policy was sent to him, and his-name was endorsed upon it as the agent procuring it. The plaintiffs received the policy so procured, and are now suing upon it It is-true, the plaintiffs did not employ Anthony directly, but hé employed Noyes, who, in turn, employed Anthony, and the plaintiffs, by accepting the policy procured by Anthony, ratified the employment of Anthony. They havt adopted as their own the act of Anthony in entering into a contract in their behalf, ohe provision of which contract is, that notice of termination of the insurance, given to Anthony, should be equivalent to notice given to them.
My conclusion, therefore, is, that none of the exceptions taken at the trial afford ground for setting aside the verdict, and that judgment must be entered for the-defendant.