January Term, 1897.
Adelbert Moot, for the appellant.
MacDonald Brothers, for the respondent.
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 special 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. PARTRIDGE, No. 145,617. November 24, 3. "Seneca Falls, 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, S.A.
It appears by the evidence that Jacoby undertook to comply with the request contained in the letter. At that time he had received the premium for the risk, and the policy had been delivered to, and was in the possession of, the plaintiff, and in order to obtain a cancellation of it, it was incumbent upon the company to tender back the premium received and to request a surrender or cancellation of the policy. Instead of pursuing that course, Jacoby volunteered to issue two other policies for $1,000 each, one in the Williamsburg City and one in the Lancashire Company, and placed them in the mail addressed to the plaintiff and did request her to accept the same in lieu of the one held in the defendant company, and accompanying the proposed substituted policies was a letter in the following language:
"SENECA FALLS, N.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 145,617, Milwaukee Mechanics for $2,000, which please return.
"Very truly, S.L. JACOBY SON."
According to the envelope which covered the letter and the two policies, it was placed in the post office at Seneca Falls November 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 November 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 anything about these policies in the Lancashire or Williamsburg City. I had never ordered them from Mr. Jacoby. I had never said anything to Mr. Jacoby about such policies at all." She further testified: "No notice was ever given to me by anybody of the cancellation or intention to cancel this Milwaukee policy in suit. No portion of the premium paid by me was ever repaid or offered to be repaid by anybody. I never authorized or directed Mr. Jacoby to get the Williamsburg City and Lancashire policies or any others in place of the Milwaukee Mechanics policy. I did not pay or offer to pay to him or anybody else any premiums on either of these policies. I knew nothing about the issuing or pretended issuing of either of these last two policies until that morning when I took them out of the envelope. I knew nothing about it. As to how I came to hold these two policies so long after the fire, I asked Mr. Gay what I should do; I didn't know what to do. He told me to hold them until I gave them to him."
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 company 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 and tender made; holding it subject to his call is insufficient. The underwriter must be certain also that the whole `ratable proportion' is refunded. This is a condition precedent, and payment of a less sum does not terminate the insurance."
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), accompanying 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 DANFORTH, 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 have such policies received by the plaintiff as substitutes for the one issued by the defendant, it was essential that the consent and approval of the plaintiff should be obtained. The evidence warranted the finding of the referee that she never assented, and, therefore, his conclusion that there was not a cancellation of the policy is correct.
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 pro 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)
it was held that, notwithstanding the restrictive clause requiring proofs of loss, "the service of proofs of loss might be waived by parol;" and under the circumstances of that case the question of waiver should have been left to the jury. In the course of the opinion it was held "that after loss has happened conditions in the policy, with respect to preliminary proofs, may be waived by parol, though the policy contain a stipulation that no waiver shall take place except in writing, signed by the president or secretary of the company."
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, FINCH, 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 with 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 York city, reciting the circumstances of the efforts made by him to cancel the defendant's policy and to have accepted in lieu thereof the other two policies, and in that letter he stated that the policies were not received, or the envelope inclosing them opened, until Monday morning, and used this additional language: "In the meantime, Sunday, Dec.2nd, a fire took place in her block. The other adjusters came on and claim that their policies are not holding, and that yours is." That gave notice to the defendant of the existence of the fire, which, coupled with the notice that they had theretofore received through the other agency and through the fact that their agent was present cognizant of the fire, coupled with the additional fact that on the twelfth, Walton, the special agent of the company, appeared and made inquiries and investigations as to the fire, warranted the conclusion of the referee that the defendant had received suitable and timely notice of the occurrence of the fire. ( Griffey v. New York Central Ins. Co., supra; Weed v. H.B.F. Ins. Co., supra.)
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 the defendant. In that case no excuse for omitting to give an earlier notice of the loss, or for the delay in sending the proofs, was given, and under the evidence it was held that the notice of loss was not served within the time fixed by the policy. It differs from the case in hand as the delay here was slight — not over seven days before actual notice transpired, and the agent had immediate notice.
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 case 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 whether, when he visited Seneca Falls on the twelfth of December, he was informed by anybody that the plaintiff claimed any loss under this policy. The question was objected to as immaterial and irrelevant, and the objections were sustained and an exception was taken. This witness subsequently narrated all the knowledge or information he had respecting the policy, and then stated: "I have now stated all the communications that we had concerning this policy from the beginning to the end, and also down to the time the suit was brought, and also all I had to do with it, according to my recollection." We think the ruling complained of worked no harm to the defendant.
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.
Judgment affirmed, with costs.