Smaldone v. President of Insurance Company of North America

| N.Y. App. Div. | Mar 15, 1897

Landon, J.:

The single question presented by this appeal is whether the plaintiff made a prima facie case of the waiver by the defendant of the proofs of loss required by the policy. The fire occurred at Saratoga Springs March 8, 1896. Charles Hartwell was the defendant’s local agent there, and as such had countersigned the policy. John H. Scotland was, as defendant admitted upon the trial “ the special agent of defendant, and had charge of this and other agencies in northern New York.” Two days after the fire Scotland went to Saratoga, and after making an examination he had the following conversation with Mr. Brusnilian, who was acting for the insured. Mr. Brusnilian asked him : “ Do you want us to file any proofs of loss under this policy ? ” Scotland answered : “No, it is entirely unnecessary ; we decline all liability for the loss.” Brusnilian then asked: “Yon don’t want appraisers appointed under the policy ? ” Scotland answered : “ No; go ahead and sue as quick as you wish to.”

The fair inference from defendant’s admission was that Scotland’s powers were specially complete and ample in respect to defendant’s interests under the policy. His explicit verbal waiver of proofs of loss bound the defendant, unless, as the trial court held, the waiver, to be valid, must be in writing.

The policy, in addition to requiring the insured to furnish the defendant, within sixty days after the fire, written proofs of loss, provides :

“No officer, agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured, unless so written or attached.”

This provision seems to embody the potentiality of successful fraud. It has received the criticism of a foreign jurisdiction. (O’Neil v. Am. Fire Insurance Co., 166 Penn. St. 72.) The defendant sends its agent, apparently clothed with full powers, to the scene of the fire, and he there tells the representative of the insured that it is entirely unnecessary to file proofs of loss under the policy. He was at the time there for that business, the defendant, ostensibly and actually. If he did not mean what he said, he meant to mislead the insured; if he did mean what he said, he should stand by it; the defendant should stand by it. The defendant does not stand by it, but steals behind the quoted provision of the policy. What for ? If to reap the advantage of its misleading declaration upon which the insured relied, then, upon familiar principles, it should be estopped from asserting this provision of the policy.

It is true that the waiver was not in writing and, therefore, not that which the contract calls for; but the defendant, like every person competent to contract, is subject to the rules of estoppel, and it is not conceived" that it. can, by any antecedent contract, escape from them. Public policy forbids that it shall in advance make any contract exempting itself from the just responsibility of such of its subsequent acts as are injurious to others. We, therefore, hold that the defendant by its declarations, subsequent to the contract, and impossible for the contract to prevent, upon which the insured relied, is estopped from insisting that the waiver should be in writing, or, to put it in another form, from insisting upon a forfeiture by reason of a non-performance which the company has induced. (Kiernan v. Dutchess Co. Mutual Insurance Co., 150 N.Y. 190" court="NY" date_filed="1896-10-06" href="https://app.midpage.ai/document/kiernan-v-dutchess-county-mutual-insurance-3594061?utm_source=webapp" opinion_id="3594061">150 N. Y. 190; Bishop v. Agricultural Insurance Co., 130 id. 488; Sharpe v. Milwaukee Mechanics' Insurance Co., 8 A.D. 354" court="N.Y. App. Div." date_filed="1896-07-01" href="https://app.midpage.ai/document/sharpe-v-milwaukee-mechanics-insurance-5180913?utm_source=webapp" opinion_id="5180913">8 App. Div. 354; Wood v. Am. Fire Insurance Co., 149 N.Y. 382" court="NY" date_filed="1896-05-26" href="https://app.midpage.ai/document/wood-v--american-fire-ins-co-3596701?utm_source=webapp" opinion_id="3596701">149 N. Y. 382; McGuire v. Hartford Fire Insurance Co., 7 A.D. 575" court="N.Y. App. Div." date_filed="1896-07-01" href="https://app.midpage.ai/document/mcguire-v-hartford-fire-insurance-5180838?utm_source=webapp" opinion_id="5180838">7 App. Div. 575; Manchester v. Guardian Insurance Co., 151 N.Y. 88" court="NY" date_filed="1896-12-01" href="https://app.midpage.ai/document/manchester-v--guardian-assurance-co-3591911?utm_source=webapp" opinion_id="3591911">151 N. Y. 88.)

Besides, the furnishing of proofs of loss is part of the procedure to which the insured resorts to collect what is due him upon his policy. The courts are reluctant to assist the insurance companies in withholding the payment they have promised when the insured is misled as to the practice by the acts or artifice of the agents of the companies. (McNally v. The Phœnix Insurance Co., 137 N.Y. 389" court="NY" date_filed="1893-02-28" href="https://app.midpage.ai/document/mcnally-v-phœnix-insurance-3602635?utm_source=webapp" opinion_id="3602635">137 N. Y. 389; Paltrovitch v. The Phœnix Insurance Co., 143 id. 73.)

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and a new trial granted, costs to abide the event.