Cupo v. Royal Ins. Co., Ltd.

• Court: Connecticut Supreme Court
• Writing for the Court: CURTIS, J.
• Citation: Cupo v. Royal Ins. Co., Ltd., 126 A. 844, 101 Conn. 586 (Conn. 1924)
• Decision Date: 12 December 1924
• Parties: CUPO ET AL. v. ROYAL INS. CO., LIMITED.

126 A. 844

101 Conn. 586

CUPO ET AL. v. ROYAL INS. CO., LIMITED.

Supreme Court of Errors of Connecticut.

December 12, 1924

Appeal from Court of Common Pleas, New Haven County; Earnest C Simpson, Judge.

Action by Salvatore Cupo and another against the Royal Insurance Company, Limited. From an order setting aside verdict in their favor, plaintiffs appeal. Error, and cause remanded with direction.

Charles S. Hamilton and William J. Carrig, both of New Haven, for appellants.

Lawrence A. Howard, of Hartford, for appellee.

CURTIS, J.

Upon the trial of this action to a jury, it was admitted by the pleadings that Field & Cowles (of Boston, Massachusetts) were the New England managers of the defendant, and John A. Gammons, an authorized resident agent at Providence, R. I.; and that they issued a policy of insurance to the plaintiffs against the theft of their Ford car. There was no controversy. The jury properly found that the plaintiffs owned the car, and that on January 15, 1922, while the policy was in force, the car was stolen from the plaintiffs. In their complaint the plaintiffs alleged:

" (7) That on the 16th day of January, 1922, plaintiffs gave notice of the loss to said defendant, and within 60 days after said theft duly rendered the statement and proofs of loss referred to in and required by said policy, to said defendant, which was then received and have ever since been retained by it without objection, and the plaintiffs, before the commencement of this action, have duly performed all the conditions of the said policy of insurance on their part to be performed, that more than 60 days have elapsed before the commencement of this action since the receipt by defendant of due notice, ascertainment, estimate, and satisfactory proof of loss, in accordance with the terms and conditions of said policy, and that this action was commenced within 12 months from the said theft."

These allegations the defendant denied. There was evidence offered and received as to all the disputed allegations of the complaint, and the jury rendered a verdict for plaintiffs to recover $517.47. The court set aside the verdict because in his opinion, under the evidence, the jury could not reasonably have found that the allegations had been proved relating to the giving of a forthwith notice of loss to the defendant, and as to the rendering of the statement and proof of loss required by the policy.

The policy contained the following provision:

" In the event of loss or damage, the assured shall give forthwith notice thereof in writing to the company, and within 60 days after such loss, unless such time is extended in writing by this company, shall render a statement to this company signed and sworn to by the assured, stating the place, time, and cause of the loss or damage, the interest of the assured and all others in the property, the sound value thereof, and the amount of loss or damage thereon, all incumbrances thereon, and all other insurance whether valid or not, covering said property."

The evidence relating to the giving forthwith notice of loss in writing to the company, was to this effect, that such notice was prepared in writing and mailed to John A. Gammons, the authorized resident agent of the defendant at Providence, R. I., on January 16, 1922. There was no serious question that the evidence was sufficient to justify the jury in finding that fact proved, and therefore this matter requires no discussion. In relation to the provision as to proof of loss, requiring the insured to " render a statement to the company signed and sworn to by the assured, etc.," the trial court was of the opinion that the evidence was not such that the jury could reasonably have found that the proof of loss required by the policy had been given.

The following is the testimony received relating to the subject of notice and proof of loss:

The plaintiff Salvatore testified that on the morning after the car was stolen (January 15, 1922), he went to the concern from which they purchased the car, and a woman employed by the concern made out in writing the " forthwith notice" required by the policy, and he signed it and saw it mailed; and that about the first week in February following, a man unknown to him came to his home claiming that he represented the defendant. He had in his possession and displayed the forthwith notice which had been mailed to Gammons on January 16th, and he asked Salvatore to make out a proof of loss. He said he came from Providence, and that Gammons sent him. He had a bag filled with papers, some were blue with the emblem of the Royal Insurance Company on them, some had " proof of loss" on them. Salvatore gave him a description of the loss of the car. He filled out a paper which he said was a proof of loss and Salvatore signed it. The man went away with the paper, and said he would let the plaintiff know in a short time. The paper he took was a proof of loss of the loss and theft of the car. It is apparent that Salvatore could reasonably have believed that this man called as the representative of Gammons, and hence of the defendant, in order to procure a proof of loss.

The plaintiffs on the trial relied upon the proof of loss prepared by the man who represented himself to them as the defendant's agent; so, in order to establish their essential allegation as to having furnished a proof of loss, there was primarily presented to the trial court two facts for the plaintiff to prove:

(1) That the man who called on Salvatore assumed to represent the defendant, and to have performed acts relating to the proof of loss in behalf of the defendant.

(2) That the defendant or its authorized agent was directly or indirectly connected with the acts performed by the claimed agent in such a way as to tend to prove that the claimed agent was in fact representing the defendant. Mechem on Agency (2d Ed.), vol. 1, § 261; Hill v....