43 N.Y.S. 632 | N.Y. App. Div. | 1897
Appellant contends that Jacoby was plaintiff’s agent in the matter of placing insurance, and that when notice was given to him to cancel the policy in suit the same ceased to be a binding contract upon the defendant.
One T. Y. Brown is general agent of the defendant, having his place of business in the city of New York at 61 William street, and associated with him is Mr. George B. Walton, who has, for ten years, been acting as sjiecial agent for the defendant. After" Jacoby had made a daily report of the policy in question, it seems that Walton made some inquiry of the agent about the risk, and the report thereon was amended by Jacoby and returned to the New York office about the twenty-fourth of November. Thereupon Walton wrote to Jacoby a letter which bore date November 24, 1893, and was mailed on that day. to Jacoby. It was in the following words:
“ Ellen B. Pabtbidge, No. 145,617. November 24, 3.
“ Seneca Palis, N. Y.:
“We kindly request the prompt cancellation of policy No. 145,617, as we already have all we want in this immediate location. Please return policy No. 145,617 to us by early mail.
“ Yours .truly,
“ GEORGE B. WALTON, & A.
“ Seneca Falls, K. Y. Nov. 29, ’93.
“ Mrs. E. B. Partridge :
“ Dear Madam.— I inclose you herewith two policies of $1,000 each on your furniture in block here, to take the place of 145,611, Milwaukee Mechanics for $2,000, which please return.
“"Very truly,
S. L. JACOBY & SOK.”
. According to the envelope which covered the letter and the two policies, it was placed in the post office at Seneca Falls Kovember twenty-ninth at five-thirty p. m. ; she' being absent, in the city of Rochester, it was forwarded through the mail to her and reached Rochester Kovember thirtieth at six a. m. From Rochester it was remailed December first at nine-thirty a. m., and reached Seneca Falls December first at six p. m.
The plaintiff testified, viz.: “ The letter from Mr. Jacoby containing. these policies came in Saturday afternoon. My janitor went for the mail and I was ill. I had a certain place on the table where he left my mail, and as I passed out with the officer, I reached over and got this mail and laid it in the .tray that he had, -during the fire. The fire was on Saturday night or Sunday morning.” It seems she was carried out of the fire by an officer and the incident that she refers to of reaching for the mail occurred during the fire. She further testified: “ This envelope, Ex. 3, that contained the policies, was opened by me at Mr. Baird’s house on Monday morning after the fire. Prior to that day, I had not known
It is quite apparent from her testimony that she had no knowledge of any desire or intention on the part of the defendant, or its agent, to cancel the policy in suit until after the fire transpired.
It is provided in the policy as follows : “ This policy shall be canceled at any time at the request of the insured, or by the company by giving five days’ notice of such cancellation.” And it is further provided in the policy, “that when this policy■ is canceled by this company by giving notice, it shall retain only the pro rata premium.”
We think the notice sent by the agent from New York to Jacoby requesting the cancellation falls far short of a compliance with the policy, and that the notice to Jacoby was not a notice to the plaintiff, and that until she became aware of the desire of the conrpany she was not called upon to elect whether she would surrender the policy in the defendant’s company and take the pro rata of the return premium, or whether she would elect to take a policy in other companies.
In Van Valkenburg v. Lenox Fire Ins. Co (51 N. Y. 465) it was held that, “ to cancel the contract, it is requisite, 1st. That notice should be given-to the assured that the insurance is terminated, not that it will be at a future day ; 2d. That the amount to be returned should be paid or tendered to the assured. He must be sought out
In Marshall v. Reading Fire Ins. Co. (78 Hun, 83; S. C. affd., 44 N. E. Rep. 1125) it was held that a provision in a policy reserving- the right to cancel it, in order to “ be valid, must be upon the condition of a restoration of the unearned premium upon the same, where the assured has practiced no fraud in obtaining the policy.”
In Walthear v. Pennsylvania Fire Ins. Co (2 App. Div. 328), áccompanying the notice of cancellation, under the power reserved in the policy, was an offer to return the unearned premium upon a return of the policy, and, under the circumstances of that case, it was held that the offer, coupled with the notice, worked a cancellation. The case differs very essentially from the one in hand:
■ In Griffey v. New York Central Ins. Co. (100 N. Y. 417) it appeared that there was a clause authorizing the company to terminate the policy at its option on giving notice to that effect, and refunding a ratable proportion of the premium for the unexpired term. The company notified the insured' before a loss, of its desire to cancel the policy, and asked to have the policy returned, promising when this was done to remit to them the return premium, and it was held “ that this was not sufficient to cancel the policy ; that the company had no right to require a return of the policy or-to require the insured to take any step in the matter; that notice of cancellation and actual payment or tender of the sum to be returned would alone suffice.” In the course of the opinion delivered in that' case by Daottorth, J., he said: “ Notice of cancellation and actual payment or tender of the sum due could alone suffice.”
The request given to Jacoby by the defendant’s agent was not a notice' to the plaintiff, and the proposition on the part of Jacoby to issue other policies and tender them, through the mail, to the plaintiff, under the circumstances disclosed by. the evidence, “ did not operate as a cancellation of defendant’s policy.” (Hermann v. Niagara Fire Ins. Co., 100 N. Y. 411.)
Plaintiff had given Jacoby no authority to accept, in lieu of the defendant’s policy, one issued by the Lancashire Company and another issued by the Williamsburg City Company, and in order to
Appellant calls our attention to Stone v. Franklin Fire Ins. Co. (105 N. Y. 543), which differs very essentially from the case in hand. In that case the policy was procured through an insurance broker who did not pay the premium, but in accordance with the course of business between him and the defendant it was charged to him, he being allowed to pay when it suited his convenience. Subsequently the defendant served upon the broker a notice to the effect that it desired to cancel the. policy, and. that the same would not be held by it binding after noon of a day specified. After that hour of the day a fire occurred, and in an action upon the policy it was held: “That the notice was effectual to cancel the policy; that it was not necessary for that purpose to return a joro rata share of the premium, as defendant, having received nothing, had nothing to return, and the notice canceled so much of the charge against F. as represented the unearned premium.” We think the case does not support the contention of the appellant. Nor do we think, the new insurances were binding upon the companies issuing them, as they never were received and accepted by the plaintiff before the fire' occurred. Nor do we think it was error to omit in the proofs of loss to mention the policies in the Lancashire and Williamsburg City companies, as they had not been received or accepted by the plaintiff before the fire transpired. The language of the policy, providing that the proofs'of loss shall contain a statement of “all other insurance, whether valid or not, covering any. of said property,” ought not to be construed so as to cover mere propositions for insurance which have not resulted in an actual policy,, or propositions made by an agent to a party which have not been accepted, for other insurance covering any of the property mentioned in an actually existing policy.
It is contended in behalf of the appellant that immediate written notice of the loss was not given to the company.
In Lowry v. L. I. Co. (32 Hun, 329; S. C. affd., 105 N. Y. 646)
That doctrine has been sanctioned and repeated several times by the Court of Appeals. •
In Weed v. H. B. F. Ins. Co. (133 N. Y. 394) the policy contained a provision requiring notice of loss to be given forthwith. No notice was given, but proofs of loss were served nineteen days .after the fire, which were received by the defendant and retained, and it was held that a finding was justified that the defendant had waived the preliminary notice.
In Paltrovitch v. P. Ins. Co. (143 N. Y. 73) it was held, viz.: “The stipulations of a fire insurance policy which-relate.to the procedure merely in case of loss are to be reasonably, not rigidly, construed.” In that case, in speaking of the terms of a contract of insurance, Finen, J., said: “ Where those terms respect the modes of proof and procedure after the loss, we shall give them always a reasonable and liberal construction and not a severe and technical one.”
Shortly after the fire the Jacobys had interviews with the plaintiff and became entirely conversant witli all the facts and circumstances' relating to the same, and S. L. Jacoby, in one of the interviews held with the plaintiff, sought to have her' give up the policy of the defendant and retain the others, and she promptly and resolutely declined to do so. Notice was sent by several agents of the other companies that had policies upon the property destroyed, and there is some evidence that a notice was sent to the defendant, it having another policy on the building, and through that means obtained early knowledge of the fact that a fire had taken place. There is some evidence that Jacoby promised to notify the defendant immediately of the occurrence of the fire, and on the ninth of December S. L. Jacoby addressed a letter to Brown, the general agent in New
Proofs of loss were made out and transmitted to the defendant and by it retained, and after they were received no question was made, until after the commencement of this action, that adequate notice had not been received by the company of the fire and of the loss occurring in consequence thereof. (Hermann v. Niagara Fire Ins. Co., supra.)
In Wilber v. The Williamsburgh City Fire Ins. Co. (15 N. Y. St. Repr. 802) it was held that where the defendant had based its refusal to pay upon the allegation that there had been a cancellation of the policy “ the plaintiff was thereby excused from presenting proofs of loss.”
In O’Reilly v. The Corporation of the London Assurance (19 Wkly. Dig. 147) it was held that where proofs of loss were retained by a company, without any other objection than that it was not liable, that the defect in the proofs of loss —• that “ any question as to whether they were presented timely ” — was waived.
Appellant calls our attention to Brown v. London Assurance Corporation (40 Hun, 101). In that case the property was destroyed by fire on June 1, 1882, and the first notice of the loss was given July eighteenth following, when proofs of loss' were forwarded to
Besides it appeared that the plaintiff was ill at the time of the fire, and taken from the building, and received a great shock to her nervous system, and was illy conditioned to attend to business of this nature, she being a widow and accustomed theretofore to have charge of her own affairs, and that she was assured by the defendant’s agent that notice of the fire had been given to the defendant.
The appellant also calls our attention to Quinlan v. Providence Washington Ins. Co. (15 N. Y. Supp. 317; S. C. affd., 133 N. Y. 356). In that case no notice was given until after the lapse of thirty-three days, and the proofs of loss were not made out until seven months after the fire, and the policy required them to be furnished within sixty days, and made the furnishing of the proofs a condition precedent to the plaintiff’s right of recovery. We think the cáse is clearly distinguishable from the one in hand.
The learned counsel for the appellant calls our attention to Ermentrout v. Girard Fire & Marine Ins. Co. of Philadelphia (30 Law. Rep. Ann. 346), and insists that it bears directly upon the' question of notice. We think the facts' upon which the opinion in that case proceeded differ very essentially from the facts in the case before us. In that case Seeley & Co. were the local agents, having the usual authority accorded to local agents, and the only evidence in that case given of the notice of loss, except the sending of proofs of loss to the general managers of the defendant at Chicago, on or about October ninth, and not received by them until October, twenty-third, “ was to the effect that, within a day or two after the loss one of the plaintiffs verbally notified Seeley & Co. that the fire had destroyed the building,’ ” and it did not appear that he requested Seeley & Co. to give or forward notice to the company, or that, they promised to do so. The loss occurred on the twelfth of August.
(3) The appellant contends that the referee erred in disallowing the question put to. Walton, when he was upon the stand, as to
Attention has been called to some other rulings during the progress of the trial, which we have looked at and find no prejudicial error.
The learned referee, in an opinion, has recited the facts and the law of the case quite satisfactorily, and we think his findings of fact in his report are sustained by the evidence, and that his conclusions of law are correct.
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.
Sic.