Opinion
Argued November 1, 1907
Decided November 19, 1907
Roger Foster and Sigmund S. Rotter for appellant. Alfred B. Nathan for respondent.
The plaintiff sought to recover the amount of a loss under a fire insurance policy. The action was brought in the City Court of New York city. The policy insured the plaintiff against loss or damage of certain articles of furniture and personal property contained in the dwelling house where he lived, the building also containing the store in which his business was transacted. There was a fire in the building and some of the furniture was damaged, but not wholly destroyed. The whole controversy arose from a dispute between the parties with respect to the amount of damages. There were negotiations between the parties looking towards a settlement after the fire. The plaintiff claimed $250, and the defendant's adjuster who examined the property insured offered to settle the claim for $38, which was refused.
After three trials and at least as many appeals, with varying and conflicting results, the case comes here upon an appeal by the plaintiff, by permission of the court below, from a judgment of the Appellate Division, which affirmed an order of the Appellate Term reversing a judgment in favor of the plaintiff entered upon a verdict in his favor for $235, and an order denying a motion by the defendant for a new trial. The defendant succeeded upon the appeals in upsetting the verdict upon one or both of two theories, which may be stated as follows: (1) That the plaintiff having alleged full performance of the conditions of the policy could not have been allowed to prove a waiver of the conditions on the part of the defendant, and this presented a question of pleading. (2) That even though the plaintiff was entitled to give such proof, under the condition of the pleadings the proof actually given was not sufficient to authorize the jury to find any waiver; and so the finding was without evidence to sustain it.
The defense was based entirely upon the omission of the plaintiff to present the proofs of loss required by the policy. The complaint alleged generally that the plaintiff had fulfilled all the conditions of the policy on his part, and this allegation was followed by another, namely, that sixty days and more before the commencement of the action the plaintiff served upon the defendant, as the proofs of loss, a complete inventory of the property destroyed and injured, with the quantity and cost of each article and the amount claimed thereon, and that the same was retained by the defendant without objection and that no further proof was required or furnished. While the word "waiver" is not found in the pleading, yet the facts relied upon to establish that defense to the claim that the conditions of the policy were not fulfilled were, we think, sufficiently stated. None of the cases cited decide that under such a statement in a complaint on a policy of insurance the plaintiff could be precluded from asserting that strict compliance with the requirements of the policy to furnish formal verified proofs of loss was waived by the insurer, and so we think that the plaintiff's complaint was sufficient to enable him to avail himself of a waiver if proven.
The provision of the policy in respect to proofs of loss is, in substance, that if a fire occurred the insured should give immediate notice of any loss to the company in writing; make a complete inventory of the property lost or damaged, stating the quantity and cost of each article and the amount claimed thereon, within sixty days after the fire, and signed and sworn to by the insured, stating the time and origin of the fire and other matters not material to this appeal. The paper contained a complete inventory of the property damaged or destroyed and the amount claimed on account of each article, which aggregated $242, but was not signed or sworn to by the insured. It was directed to the defendant at its New York office and received by it shortly after the fire. The defendant sent an adjuster with this inventory to the plaintiff's dwelling, who, with the aid of the inventory, examined the several articles of property and the condition of the same, and entered upon negotiations with the plaintiff for a settlement of the claim. The parties failed to agree upon the amount of the loss, but the adjuster offered to pay $38 in settlement, which was refused by the plaintiff. It is admitted that this paper was a sufficient notice to the defendant that a fire had occurred, but it is strenuously denied that it was in any sense a compliance with the requirements of the policy. Of course it was not such a formal paper as the policy required. There can be no dispute about that. The only question is whether the defendant by retaining it without any objection until the sixty days had expired, by using it for the purpose of identifying the property and ascertaining for itself the amount of the damage to the various articles covered by the policy and then entering upon negotiations based upon the contents of the paper for a settlement of the claim, did not lead the plaintiff to believe that no further proofs of loss would be required, and so waived the objection now urged to a recovery. The only dispute between the parties was in regard to the amount of the damages, and the paper sent to and received by the defendant gave to it all the information that it could receive from the most formal proofs furnished is strict conformity with the policy.
We are, therefore, inclined to think that the circumstances referred to were properly submitted to the jury, and the finding that the defendant waived strict compliance with the terms of the policy cannot be said to be unsupported by any evidence. It is quite impossible to examine the vast list of cases cited upon the question, pro and con, by counsel in any reasonable period of time, and it may be that there is conflict among them. The requirement that proofs of loss shall be furnished is a condition in a policy that becomes operative only after the capital fact of a loss and, unlike some of the other conditions in policies, it is to be liberally construed in favor of the insured. ( McNally v. Phœnix Ins. Co., 137 N.Y. 389; Carpenter v. German-Am. Ins. Co., 135 N.Y. 303.)
The order of the Appellate Division, affirming that of the Appellate Term, should be reversed and the judgment entered on the verdict affirmed, with costs to the plaintiff in all courts.
CULLEN, Ch. J., VANN, WERNER and CHASE, JJ., concur.
I vote for affirmance on the grounds expressed in the opinion of the Appellate Division. I doubt that the waiver was sufficiently pleaded; but, assuming that it was, there was no proof showing, or tending to show, waiver. The notice of October 2d was not proof and the offer of the company to pay the $38 was properly refused by the plaintiff. He should then have filed his proofs of loss.
WILLARD BARTLETT, J., not voting.
Ordered accordingly.