106 Me. 229 | Me. | 1909
This is an action of assumpsit upon a policy of insurance issued by the defendant company through its agent Charles M. Stewart, May 28, 1908. The policy was never delivered to the plaintiffs, neither was any premium paid, but it is not claimed by the defendant that these facts affected the validity of the contract. The defense is cancellation by agreement, and the facts on which the defendant relies to prove such cancellation are these. On the afternoon of June 11, or the morning of June 12, 1908, the agent received notice from the home office of the company in New York to cancel this policy for the reason, as he testifies that
At the conclusion of the testimony the presiding Justice ordered a verdict for the defendant and the case comes to this court on exceptions by plaintiffs with the stipulation that if the order was erroneous, judgment is to be entered for the plaintiffs for the amount claimed. As the case is presented the test is whether a verdict for the plaintiffs could be sustained by this court on the evidence. Bank v. Sargent, 85 Maine, 349; Young v. Chandler, 102 Maine, 251. It is the opinion of the court that such a verdict could be sustained.
It must be conceded at the outset that except by agreement or waiver, this policy which was of the Maine Standard Form, could
The evidence in. this case does not sustain that burden. A waiver is a voluntary relinquishment of some known right, benefit or advantage, which except for such waiver, the party would have enjoyed. Peabody v. MaGuire, 79 Maine, 572; Stewart v. Leonard, 103 Maine, 128. It follows that there can be no waiver in pais. without knowledge. A party cannot be deemed to waive by word or act a right which he does not know that he possesses. Marcoux v. Soc. of St. John Baptist, 91 Maine, 250. The preponderance of the evidence in the case at bar is in favor of the plaintiffs’ ignorance of the ten days provision before referred to. True, Mr. Rosen when called in rebuttal testified that he knew about this provision prior to the fire, but the facts that occurred at the time show conclusively that in this he must have been mistaken and that he knew nothing of it until informed of the fact by another agent. Nothing was said by either party in regard to this ten days’ limit when the conversation was had on June 12, in regard to the cancellation, but the agent testified that in the afternoon of June 13, after the- fire, the following conversation took place.
"Mr. Rosen came to my office and said that another insurance agent in Bangor had told him that under the conditions of every policy he was entitled to have that policy remain in force for ten days to enable him to procure other insurance. I told him I didn’t so understand it, unless the property was mortgaged. That in reading the policies that was the understanding I had always had of it.
Immediately after this interview the agent wrote the home office á full report of all that had taken place between Rosen and himself-both before the fire and after, and in the course of the letter says : "Mr. Rosen supposed, as he was ignorant of the law in the matter, that he had no claim after 12 o’clock yesterday on our company, another agent with whom he was discussing the feature this morning told him he was entitled to ten days’ notice. Mr. Rosen thereupon called upon me and stated that he was until now unaware that the Maine Standard Policy contained a clause giving the assured ten days’ notice, and if he is legally entitled to reimbursement by the German Alliance for loss sustained he shall expect them to meet him fairly and pay him.”
On cross examination the agent admitted that up to the time of this interview, he himself, although he had been engaged in the business for seven years had no knowledge that this ten days’ clause covered all holders of policies. The fact is that neither the agent was aware of its effect nor the plaintiffs of its existence at the time of the attempted cancellation, and all that was said and done at that time rested upon the mutual assumption of the right of immediate oral cancellation. Why should the plaintiffs relinquish this right, if known, and run the possible hazard which within twenty-four hours became an unfortunate fact? They say that the agent promised to procure other insurance and that it was at most only a conditional cancellation. The agent denies that he ever made an absolute promise but only agreed to try to place the risk which he did and failed. He denies the conditional cancellation and in his letter before referred to virtually negatives the waiver of an absolute one. Both parties labored under a misapprehension of the facts.
Were the issue as made by the defendant that of unconditional cancellation the defendant has failed to substantiate it. There is
To surrender a policy of insurance is to surrender all rights under that policy and the right to have ten days’ written notice of cancellation is one of the most important therein contained. This court is reluctant to hold that the assured can be deemed to have intentionally waived or surrendered a right of which they were wholly ignorant and to thus have deprived themselves of the protection which the policy under the command of the legislature has given them.
Exceptions sustained.
Judgment for plaintiffs for ‡883.31 with interest from August &5, 1908. ..