Bush v. Westchester Fire Insurance

Nearly all the defendant’s exceptions to the reception or rejection of evidence and to the charge of the judge are summed up in this proposition: That Sly & Straight, the defendant’s agents in Elmira, could not waive the térms and conditions stated in defendant’s policy, which was' issued by Sly & Straight' to plaintiff. If the defendant be successful in sustaining this proposition, under the facts proved, the plaintiff’s recovery is wrong; otherwise the objections will not avail.

By the evidence it appears that the policy was not to be valid “ unless countersigned by the duly authorized agent of defendant at Elmira, N. T.; ” that Sly & Straight were the agents, and only agents, of the defendant at Elmira; that the loss byflre occurred on the 24th of November, 1870; that proofs of loss were given by plaintiff on the 30th of November, to Sly & Straight, who immediately forwarded the same to defendant; that such proofs were received by the company on the 1st day of December; that such proofs of loss were and are still retained by the company; that no objection to their form or sufficiency was made by the company until the 12th day of January, 1871, when plaintiff was notified by letter from the company that they “are not accepted,” without any reason assigned or defect suggested. By the verdict of the jury it is further found, and such finding is sustained by the evidence, that on the morning after the fire Sly & Straight, as defendant’s local agents, with the agents of other companies having interest in the loss, took possession of the store and property saved, examined the same and the *632plaintiff’s books, invoices, etc., agreed that the loss was total; that before the 12th of January, 1871, such of the property as was saved from the fire had been sold by the direction of Clark, the defendant’s adjuster; that Clark reached Elmira on December 2, and had various interviews with plaintiff and Sly & Straight, and that plaintiff’s loss was honest and for the amount insured. The evidence is conflicting as to whether Clark or any one for defendant demanded any inventory of the goods in the store before the 12th of January. According to plaintiff’s evidence none was demanded. Defendant’s witnesses swear to the'contrary, and that they were refused access to plaintiff’s books, etc. Plaintiff and his witnesses testify that such books, etc., were freely shown to defendant’s agents until they were lost.

It is apparent from the whole evidence that Sly & Straight, from the time of the fire, assumed to act as defendant’s agents in settling the loss and advising plaintiff, in the course which he pursued; that the plaintiff relied on them for information and protection, and that whatever he did was upon their assurance that it was right and proper for him to do. So the jury must have found under their instructions. Sly & Straight had a special power of attorney from the company defining their powers to act, but of this the plaintiff had no knowledge or information until about the time the action was commenced.

Upon the facts of the case, of which a skeleton only is herein given, it is quite evident that by neglecting to reject and return the proofs of loss with notice of their defects within a reasonable time, the defendant waived any objections thereto qr deficiencies therein. Savage v. Corn Ex. Ins. Co., 4 Bosw. 1; O'Niel v. Buffalo Ins. Co., 3 N. Y. 122; Bodle v. Chenango Ins. Co., 2 id. 53; Owen v. Farmers’ Ins. Co., 57 Barb. 518; McLaughlin v. Washington Ins. Co., 23 Wend. 525.

It is also equally evident that Sly & Straight and plaintiff acted in the belief that Sly & Straight were properly engaged in the adjustment of the loss and in their instructions to plaintiff; that such conduct was within their employment by defendant, and in the line of their duty under their agency. The jury have found that they acted in good faith, and that plaintiff’s loss was without fraud or dishonesty.

Under such circumstances, if an adjustment of the losses was made by the agents of other companies in connection with Sly & *633Straight, or with their assent and approval, and if they told plaintiff that such adjustment was all right, and that his loss would be paid, the plaintiff had a right to rely upon such promise, and the defendant should be estopped from denying such agents’ acts. Sly & Straight were so far agents for the defendant in that locality (even if not in fact general agents there) as to bind the company in the exercise of an apparent authority with one who was ignorant of any restriction or qualification of their agency. As a consequence they could waive a strict compliance by plaintiff with the terms and conditions of the policy. The reasons for such a rule are presented by Miller, J., in the case of Insurance Co. v. Wilkinson, 13 Wall. 222, and the rule is sanctioned by numerous decisions, among which may be cited Rohrbach v. Ætna Ins. Co., 1 N. Y. Sup. 339, 341; Lightbody v. North Amer. Ins. Co., 23 Wend. 22; Post v. Ætna Ins. Co., 43 Barb. 351; McEwen v. Montgomery Co. Ins. Co., 5 Hill, 101, 105; Washington Ins. Co. v. Lawrence, 53 Barb. 316.

Such a rule as to the agents of insurance companies is essential for the protection of the community from fraud and imposition. The jury having found with the plaintiff upon these points, their verdict is conclusive.

The demand made by defendant on January 12th for an inventory of the stock destroyed was a nullity, if the foregoing conclusions of law are' justified. It is further submitted that so great, a delay as six weeks after the fire before demand made was a degree of laches that should amount to a waiver of right, especially since the property saved had been sold to the knowledge of Clark, defendants’ adjuster, and the books and papers had been lost.

Upon a careful examination of the other exceptions in the case, no error is discovered for which the judgment should be" reversed.

There was certainly no evidence upon which the jury could have been justified in finding that plaintiff burned his own store. A verdict to that effect would have been set aside as against or ivithout evidence to support it. The testimony may have been sufficient to excite suspicion, but does not rise to the dignity of proof.

Teerpenning v. Corn Exchange Ins. Co., 43 N. Y. 279, is cited by defendant to show that the court erred in allowing witnesses to be asked the amount of value of goods in the store at the time of the fire.

The case is readily distinguished from the one under consideration. In Terpenning’s case the witness was a farmer having no *634knowledge of the quantity, quality or value of the stock, or experience in the business, or the course or results of the business in progress. In this case the plaintiff was the purchaser and owner of the stock, and possessed the most perfect knowledge of its value possible. Taylor was his clerk, auctioneer and salesman, familiar with the goods and the business, and Auhalt was the brother-in-law of plaintiff, making the store his office; had sold plaintiff a quantity of goods not long before; was familiar with the value of the goods in the store; was in the store the day before the fire and had assisted in marking a large amount of goods received just before the fire. These facts bring this case within the authority of Clark v. Baird, 9 N. Y. 183, 196. Judge Johnson, as the result of a careful examination of the authorities, lays down the rule (p. 196) “upon a question of value, the opinion of a witness, who has seen the thing in question, and is acquainted with the value of similar things, is not incompetent to be submitted to a jury.” These goods were destroyed. Ho other persons were as competent as the three called to prove value. An inventory w;as impossible. The value proved was not the amount to be recovered. It was only to show that plaintiff had an insurable interest to the amount of his policies, which were less than $10,000. The proof by plaintiff and others shows the value of the stock to be $20,000 or over. If plaintiff’s evidence in this .respect was competent the other evidence, though incompetent, should not affect the result.

For the reasons assigned, the judgment should be affirmed, with costs.

Judgment affirmed.