Clark v. Ins. Co. of N. Am.

• Decision Date: 12 March 1896
• Citation: 35 A. 1008,89 Me. 26
• Parties: CLARK v. INSURANCE CO. OF NORTH AMERICA.
• Court: Maine Supreme Court

35 A. 1008

89 Me. 26

CLARK

v. INSURANCE CO. OF NORTH AMERICA.

Supreme Judicial Court of Maine.

March 12, 1896.

(Official.)

Report from supreme judicial court, Knox county.

Action by Arthur A Clark against the Insurance Company of North America. On report. Judgment for defendant.

C. E. & A. S. Littlefield, for plaintiff.

Wm. H. Fogler, for defendant.

FOSTER, J. The plaintiff desired to procure an insurance of $1,200 for six months on his carriages, sleighs, and stock in a building owned by him at Rockport. Accordingly, on the 6th day of December, 1893, he left instructions at the office of F. A. Packard, who was agent of the Commercial Union Insurance Company, and five other companies, including the defendant company. The plaintiff gave no instructions as to what company the insurance should be placed in, this matter being left wholly to the agent. The policy was made out in the Commercial Union Insurance Company, and the plaintiff, on the 16th day of December, paid the premium, and received the policy of that company, which policy he retained in his possession until two days after the property insured was destroyed by fire, which occurred at 1 o'clock in the morning of December 19th, which was Tuesday. During that time he had no notice that the company intended or desired to cancel his policy. On December 15th the Commercial Union Insurance Company wrote the agent to cancel the policy. This letter reached Camden, where the agent resided, on the 16th, which was Saturday, in the evening, and was taken from the office by the agent on Monday, the 18th. Upon receiving this instruction to cancel the policy, the agent instructed his wife, who was his clerk, to write a new policy in the defendant company. The agent was in the office in the evening, and, finding that nothing had been done in reference to the policy, wrote a "daily report" of the insurance in the defendant company, and it remained in his office until the afternoon of the next day, Tuesday, when the policy in suit was written. After the daily report had been written, but before it was mailed, and before the policy was made out or entered in the register, the plaintiff notified the agent that the property insured had been destroyed by fire. When the plaintiff notified the agent of the destruction of the property that Tuesday morning, the agent told him he had just received word from the company to cancel the policy in the Commercial Union. That was all the conversation that was had In relation to the cancellation of the policy. The plaintiff testifies that he went over to the agent's office about 8 o'clock on the morning of Tuesday, the 19th, and notified him that it had been burned, and he said he was just reading a letter he had received from the company to cancel the policy. At the time the plaintiff left the agent's office, he had no knowledge that any attempt had been made to cancel the policy which he then held upon his property, which had then been destroyed, and had no knowledge that any act had been done towards placing the insurance in another company. The policy which the agent wrote in the defendant company on the afternoon of the 19th, and after the plaintiff had given notice of the loss, was antedated December 6th, and the record of cancellation of the other policy, December 18th, as of the date when notice was received by the agent to cancel the policy in the Commercial Union, and when the "daily report" was written for the defendant company. Two days after the fire, the policy in suit, in the Insurance Company of North America, bearing date December 6, 1893, was sent to the plaintiff by the agent through a Mr. Andrews, who said he had another policy, and he would take the old one, and give the plaintiff a new one, and that it would be all right. The plaintiff testifies that he hesitated about doing it, but at last gave him the first policy, and took the new one upon his assurance that it would be all right, and that he would be protected. The record of cancellation was not entered on the register of the Commercial Union until Mr. Andrews returned with the policy from the plaintiff, though the record was dated December 18th, the day before the fire. On the afternoon of Tuesday, the 19th day of December, the agent mailed to the defendant company the daily report which had been written the evening before, informing the company of the insurance, and also in a separate envelope notice of the loss.

The premium paid by the plaintiff for the policy in the Commercial Union was transferred to the account of the defendant company, and remitted, with other money, in the due course of business, and this is still retained by them.

On December 25th, a special agent of defendant company, in reply to the notice of loss, notified the agent that he would come down the next week. The defendant company, on learning the facts concerning the loss, making of the policy on the 19th of December and antedating it as of the 6th, and the alleged canceling of the policy in the Commercial Union, disaffirmed the acts of the agent, claiming they were wrong and illegal, and that the Commercial Union was the company liable, and not the defendant.

The plaintiff, as the case shows, has another action pending against the Commercial Union, and has made due proof of loss to that company. In his proof of loss against the defendant company he states that he was insured in the Commercial Union; that they claim it was canceled before or at the time the insurance was effected in the defendant company, but which claim he states he does not admit, nor does he waive or surrender any rights that he may have against that company by filing his proof of loss against the defendant company.

Such, in substance, are the facts upon which the plaintiff seeks a recovery in this action against the defendant company.

We do not think he can maintain this action.

There was a valid contract of insurance existing between the plaintiff and the Commercial Union Insurance Company on and after December 16th, when he paid the premium and received his policy. Up to the time of the fire, the plaintiff had received no notice of the intended cancellation of that policy. He had neither authorized nor requested any other insurance of his property, nor had he requested or assented to a cancellation of his policy in the Commercial Union. By the terms of the policy the company could cancel the policy by giving to the assured five days' notice. No such notice was given, and the policy remained uncanceled, and in full force in the hands of the assured, on the 19th day of December, when the loss occurred, and when he notified the agent of the loss. Without such a stipulation, or some stipulation strictly authorizing it, an insurance company cannot cancel a contract of insurance once entered into, except with the assent of the assured. 1 May, Ins. § 67; Insurance Co. v. Swift, 10 Cush. 433.

And when the policy contains such a stipulation, the notice must be unequivocal. It is not enough to give notice of a desire to cancel, or to deliver the policy for cancellation. Lyman v. Insurance Co., 14 Allen, 329; Griffey v. Insurance Co., 100 N. Y. 417, 3 N. E. 309.

The only notice ever given by the company that had entered into a contract with the plaintiff was that given on the 15th of December in a letter to their agent. He was not the agent of the assured for the purpose of receiving notice of the cancellation of the policy which he himself had written and delivered to the assured as agent of that company.

A case significantly similar to the one at bar was before the court in New Hampshire in Stebbins v. Insurance Co., 60 N. H. 65, and there, as here, the attempt was made to change the risk from one company to another after the...