Cheshire Brass Co., Inc. v. Wilson

Decision Date11 March 1913
CourtConnecticut Supreme Court
PartiesCHESHIRE BRASS CO., INC. v. WILSON.

Roraback and Wheeler, JJ., dissenting.

Appeal from Superior Court, New Haven County; Gardiner Greene, Judge.

Action by the Cheshire Brass Company Incorporated, against Clarence P. Wilson. Judgment for defendant, and plaintiff appeals. Affirmed.

The action is to recover damages for the defendant's tort in wrongfully canceling policies of insurance on the plaintiff's property, and in refusing and neglecting to disclose the names of the companies in which the property was insured.

Demurrer to a portion of the reply to the defendant's answer was sustained. Trial to the court.

In October, 1908, the plaintiff owned certain real and personal property constituting a brass mill. The defendant conducted an insurance agency, and was agent for a large number of insurance companies. On or about October 1, 1908, the plaintiff and defendant entered into an agreement that the latter should procure for the plaintiff upon the abovementioned mill property insurance against fire to the amount of $17,000 for one year. The defendant procured the insurance as agreed, and delivered the policies to the plaintiff. The plaintiff in payment of the premiums indorsed to the defendant the note of a third party, which was afterward paid to the defendant, leaving a balance of about $80, which was to be paid in cash. Shortly after the policies were so delivered, the plaintiff delivered them back to the defendant at his request to enable him to substitute new policies for policies in certain companies which had refused to take the risk. The defendant made such substitution prior to November 17, 1908, and the policies thereafter remained in his possession. He notified the plaintiff that he held the policies, but never delivered them to the plaintiff, and the latter never called for them. On March 9, 1909, the property insured by these policies was damaged by fire to the full amount of the insurance. Immediately after the fire, the plaintiff notified the defendant thereof, and requested him to state the names of the companies in which he had procured the insurance. He declared that he had canceled the policies, and declined to state the names of the companies by which they were issued. The plaintiff did not demand the policies of the defendant. The latter prior to this time had not notified the plaintiff that he had canceled the policies. The policies were of standard form, and by the terms thereof required five days' notice to the insured to effect a valid cancellation thereof. The plaintiff, until after the fire occurred, believed that the defendant had procured the insurance as represented, and continued to hold such insurance for the plaintiff, and in consequence of such belief did not procure other insurance upon its property.

The original complaint alleged the agreement between the parties as above stated, that the defendant represented that he had procured the insurance, that the plaintiff believed the representations and therefore did not procure, and was thereby prevented from procuring, other insurance, that until after the loss it believed that the property was insured by policies procured by the defendant in accordance with the agreement, that immediately after the fire it notified the defendant and requested him to state the names of the companies in which the property was insured, but the defendant declared that he had canceled the policies and refused to state the names of the companies, and that prior to this time he had never notified the plaintiff that he had canceled the policies. There was no allegation that the defendant had or had not procured the insurance as agreed, or that he had or had not canceled the policies. By an amendment to the complaint it is alleged that the plaintiff was prevented from furnishing proofs of loss to the insurance companies by the defendant's refusal to give it their names. This allegation is found to be not proven, and not true by the court. By another amendment it is alleged that the defendant wrongfully caused the cancellation of the policies procured by him. This also is found to be untrue.

E. P. Arvine and Henry G. Newton, both of New Haven, for appellant.

James H. Webb, of New Haven, for appellee.

THAYER, J. (after stating the facts as above). The original complaint left it doubtful whether the plaintiff had attempted to found its action upon a breach of contract to procure insurance or upon the defendant's tort in refusing to give the names of the insurance companies in which he had procured insurance. After an intimation by the court that the complaint was insufficient, two amendments which are referred to in the statement were added to the complaint. As amended, it is to be regarded as an attempt to state a cause of action sounding in tort the wrongs complained of, being, first, the defendant's refusal to give the names of the insurance companies, and, second, his wrongful cancellation of the policies. The amended complaint contains no allegation that the defendant procured the plaintiff's property to be insured, and, in the absence of such an allegation, no duty to state the names of any insurance companies is shown. But assuming that such duty existed and is properly shown by the complaint, and that it was neglected by the defendant, the court has found that the plaintiff's further allegation that it was thereby prevented from making its proofs of loss was not proven. The plaintiff was bound to prove this allegation as well as the defendant's negligence. This involved showing its own freedom from negligence. The finding of the court is conclusive against the plaintiff upon this issue. In its draft finding the plaintiff requested the court to find that there was no evidence that the plaintiff could have ascertained the names of the insurance companies otherwise than by a statement of them by the defendant, and now seeks for a correction of the finding, so that it shall comply with his request. But the plaintiff had made the allegation that it was prevented from making proof of loss by the defendant's neglect to give the names, and the burden of proof was upon it to show that it had used reasonable effort to learn the names and make the proof. This was included in the issues formed by the pleadings. Gen. St. § 3490, provides that the insurance commissioner may, for the purpose of determining whether insurance companies are conducting their business in this state in a proper manner, and duly adjusting and paying their losses, require them to answer such questions as he may think...

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29 cases
  • Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc.
    • United States
    • Connecticut Supreme Court
    • July 4, 1995
    ...Feldman, 164 Conn. 554, 556-57, 325 A.2d 247 (1973); Borden v. Westport, 112 Conn. 152, 154, 151 A. 512 (1930); Cheshire Brass Co. v. Wilson, 86 Conn. 551, 560, 86 A. 26 (1913). The standards for a waiver pursuant to § 51-183b are therefore wholly unlike those governing the waiver of a cons......
  • Larsen Chelsey Realty Co. v. Larsen
    • United States
    • Connecticut Supreme Court
    • April 4, 1995
    ...v. Gigliotti, supra, 165 Conn. at 622, 345 A.2d 45; Went v. Schmidt, 117 Conn. 257, 259-60, 167 A. 721 (1933); Cheshire Brass Co. v. Wilson, 86 Conn. 551, 558-59, 86 A. 26 (1913); Beattie v. New York, N.H. & H.R. Co., supra, 84 Conn. at 559, 80 A. 709. Accordingly, the plaintiff's appeal on......
  • Remax Right Choice v. Aryeh, 26571.
    • United States
    • Connecticut Court of Appeals
    • April 10, 2007
    ...may be implied. Gordon v. Feldman, 164 Conn. 554, 556-57, 325 A.2d 247 (1973); Borden v. Westport, supra; Cheshire Brass Co. v. Wilson, 86 Conn. 551, 560, 86 A. 26 (1913). Because consent may be implied from a failure to object seasonably after a delayed judgment has been rendered, these ca......
  • Dichello v. Holgrath Corp.
    • United States
    • Connecticut Court of Appeals
    • July 7, 1998
    ...Conn. 554, 556-57, 325 A.2d 277 (1973) ]; Borden v. Westport, [112 Conn. 152, 184 , 151 A.2d [A.] 512 (1930) ]; Cheshire Brass Co. v. Wilson, [86 Conn. 551, 560, 86 A. 26 (1913) ]." Waterman v. United Caribbean, Inc., 215 Conn. 688, 693, 577 A.2d 1047 (1990).10 As to this opinion of Werdige......
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