59 N.J.L. 544 | N.J. | 1896
The opinion of the court was delivered by
This was an action on a policy of insurance against loss by fire, dated August 27th, 1892. The suit was tried in the Court of Common Pleas of Monmouth county, and resulted in a verdict for the plaintiff. The property insured was a dwelling-house situate at Freehold. The fire occurred August 9th, 1894. Notice of the loss was promptly given and was received by the company August 11th. The policy requires proof of loss, containing a statement setting
Proof of loss, such as required by the policy, was not furnished until the latter part of October, which was after the expiration of the thirty days after the fire. To justify- the failure to furnish proofs of loss in season the plaintiff relied upon a waiver by agents of the company. The facts relied on for that purpose are these: Lockwood, the local agent of the company at Freehold, gave the company notice of the loss by a letter dated August 9th, saying also that the Phoenix company had a policy of $1,000 on the household furniture. On the 13th or 14th of August, Nichols, a special agent of the company, came to Freehold. Nichols testified that he came there as the company’s special agent solely for the purpose of ascertaining the amount of the loss or damage. When Nichols arrived at Freehold, Mr. Walsh, an adjuster representing the Phoenix company, was there. Lockwood testified that Mr. Nichols said to him, in the presence of the plaintiff, “Lockwood, I have arranged with Mr. Walsh to adjust the loss, and I can go on to Philadelphia and save time; ” that he, Walsh and the plaintiff then adjusted the loss at $1,100, and the plaintiff signed a paper agreeing to accept that sum from the defendant company. Lockwood further testified that he, at that time, asked the plaintiff if he had the specifications of the loss; that plaiutiff said he did not have them-then, but the company could have them at almost any time they desired; that he (Lockwood) then said to the plaintiff
The force of this testimony arises from the fact that Lockwood participated in the adjustment of the loss and advised ¡the plaintiff that he had nothing further to do until he heard from the company. The plaintiff received no information from the company on the subject until, by a letter dated October 11th, signed 'by the assistant secretary, he was notified that the company disavowed liability upon the policy, for the reason, among other reasons, that proofs of loss had not been ■given to the company within thirty days.
Lockwood testified that he was the resident representative ■of the company at Freehold and had charge of issuing policies ; ■ that the way policies were issued by him was that the policies were sent to him signed and in blank; that he was to fill up the policy, to issue insurance—either fire, lightning or tornado—sign them and deliver them to the insured, collect the premiums and forward the premiums, less his 'commissions, to the company. If the presentation of proofs of -loss was capable of being waived otherwise than by agreement endorsed upon the policy, in compliance with its terms, Lockwood’s agency was such that the waiver might be made by him, and his acts and assurances were such as were competent evidence of - a waiver. Tlie' trial judge gave the instruction to the jury that proofs of loss might be waived by the -company by acts and declarations which led the insured to believe that it will not insist upon such a requirement, and that an agent “ entrusted with policies of insurance 'in blank, •and authorized to issue them upon the ápplication óf parties seeking insurancé, is thereby clothed with apparent authority to bind the company in reference to any condition of the contract, whether precedent or subsequent, and may waive notice of proofs 'of loss, and may bind the company by liis admissions in respect thereto.” With these instructions, the questions of fact arising from the evidence were left to the jury.
Another assignment of error appears in the record, which was not considered in the Supreme Court. There was a kerosene oil-stove in the shed which was on the premises. The oil-stove was used for cooking. The fire broke out in close proximity to the stove. The lamp in the stove was then burning, but the fire was not caused by an explosion. The policy contains a provision that it should be void if “ there be kept, used or allowed on the above-described premises, naphtha or petroleum or any of its products of equal or greater inflammability than kerosene oil of legal standard (which last may be used for lights only, provided the oil be drawn and the lamps be trimmed and filled solely by daylight).”
The only legal standard for petroleum or any of its products is that specified by the act of 1883. That act provides that “only - such product of petroleum as will not flash at a less temperature or flash-test than one hundred degrees Fahrenheit, may be sold for lighting or illuminating purposes, except when the same is to be used in street lamps or open-air receptacles or in gas machines, in which case (as to petroleum or kerosene) there shall be plainly marked on the barrel, can or vessel in which the same is sold, &c., the words, ‘Not for inside lights.’” Gen. Stcit., p. 2454. No standard is prescribed by this statute except for lighting or illuminating purposes—“ inside lights.” In fact, the kerosene oil used in the kerosene stove was of the standard of one hundred and fifty degrees Fahrenheit flash-test, which is above the standard mentioned in the statute.
The contention is that the policy, by force of the above provision, was avoided by the use of kerosene otherwise than -in lamps for illuminating purposes. The result of this con-tention depends upon the construction and effect of the clause of the policy above set out. It is a settled rule in the con
For affirmance—Gummere, Dayton. 2.
For reversal — Depue, Lippincott, Ludlow, Van Syokel, Bogert, Hendrickson, Nixon. 7.