Frost v. N. British Mercantile Ins. Co.

• Decision Date: 18 May 1905
• Citation: 77 Vt. 407,60 A. 803
• Court: Vermont Supreme Court
• Parties: FROST v. NORTH BRITISH MERCANTILE INS. CO.

60 A. 803

77 Vt. 407

FROST

v. NORTH BRITISH MERCANTILE INS. CO.

Supreme Court of Vermont. Windham.

May 18, 1905.

Exceptions from Windham County Court; Munson, Judge.

Action by Julius O. Frost against the North British Mercantile Insurance Company. From a judgment in favor of plaintiff, defendant brings exceptions. Affirmed.

Argued before ROWELL, C. J., and TYLER, START, WATSON, HASELTON, and POWERS, JJ.

E. L. Waterman, J. L. Martin, and B. W. Gibson, for plaintiff. Clarke C. Fitts, for defendant.

WATSON, J. This action is general and special assumpsit upon an insurance policy to recover amount of loss by fire. The defendant pleaded the general issue and four special pleas in bar. The fourth special plea is that the plaintiff did not, within 60 days after the fire, render a proof of loss to the defendant, signed and sworn to by the plaintiff, as required by the terms of the policy. In reply thereto the plaintiff says, in short, that such proof was waived by the defendant. The policy contains provisions that within 60 days after the fire, unless such time is extended in writing by the company, the insured shall render to the company a proof of loss, signed and sworn to by him; and that the loss shall not become payable until 60 days after satisfactory proof of the loss required in the policy has been received by the company. At the close of the evidence the defendant moved for a verdict upon 16 grounds assigned therefor, and excepted to the overruling of the same. It is argued that the motion should have been granted upon the last seven grounds assigned, the substance of which may be stated thus: That by the undisputed evidence the plaintiff did not, within 60 days after the fire, render a proof of loss to the company, signed and sworn to by him as required; that there was no evidence tending to show any waiver of such proof on the part of the company; that there was no written waiver thereof attached to the policy or indorsed thereon, and none introduced in evidence; that the time for filing such proof of loss has never been extended in writing by the company, nor waived, nor extended, nor forborne by it, or any representative, agent, or officer thereof; and that by the terms of the policy no action can be maintained upon it, and no loss is payable under it, until 60 days after due notice, ascertainment, estimate, and satisfactory proof of loss has been received by the company in accordance with the terms of the policy.

From the policy itself and other evidence in the case it appears that the defendant is a foreign company of London and Edinburgh, established under the laws of the Kingdom of Great Britain and Ireland; that the company has a United States branch, with its general office in the city of New York. As is contended by the defendant, the case shows no correspondence or negotiations with the home office of the company regarding the loss; hence it is important to inquire regarding the powers of the officers, agents, and representatives in charge of this general office in New York. It appears that the United States branch has in New York a board of directors, a manager, an assistant manager, and a general adjuster; that the manager is the general manager of the company in the United States, in charge of the office in New York, and the general adjuster is in charge of the loss department, and that all proofs of loss received by the company at that office are in his charge and custody. And the evidence tended to show that general agents were appointed by the authorities at that office for the company in other states of the Union; also local agents, who are authorized and empowered to receive proposals for insurance and to make insurance by policies of the company signed by one of its said directors and attested by the manager; and that for all purposes of making insurance contracts, issuing policies, receiving moneys on such contracts, adjusting and paying losses, in the United States, those in charge of the general office in the city of New York were intrusted with unlimited powers without control or interference by the managers of the home office in London or Edinburgh. The policy to the plaintiff was issued for the company by one of its directors and its manager at the general office in New York, acting under power of attorney from the company, countersigned by the local agents at Brattleboro through whom the insurance was made. With such facts established, it would follow, as a matter of law, that the actions and doings of the managers at the general office of the United States branch pertaining to the policy or the loss in question must be considered as the acts and doings of the company itself. Hartford Ins. Co. v. Haas, 87 Ky. 531, 9 S. W. 720, 2 L. R. A. 64; Hartford Life, etc., Ins. Co. v. Hayden's Adm'r, 90 Ky. 39, 13 S. W. 585; Rivara v. Queen's Ins. Co., 62 Miss. 729; Phœnix Ins. Co. v. Bowdre, 67 Miss. 620, 7 South. 506, 19 Am. St. Rep. 326. The rule recognized and quoted in Smith v. Niagara Ins. Co., 60 Vt. 682, 15 Atl. 353, 1 L. R. A. 216, 6 Am. St. Rep. 144, "that the powers of an agent are prima facie coextensive with the business intrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals," is much in point here. The house covered by the policy was burned October 9, 1901. The plaintiff, who has an office in Boston, immediately by letter notified Taylor & Son, the defendant's local agents in Brattleboro, that the house was burned. On receipt of this letter Taylor & Son notified the company at the New York office of the loss, and so stated in their letter to the plaintiff written October 11th in reply to his letter of the 9th. The company, by its assistant manager at the New York office, notified Ralph S. Norton, the general agent of the company residing in Maine, of the loss. Norton was the company's adjuster, and was the sole person having in hand the work of the settlement of losses in the states of Maine, New Hampshire, and Vermont. On October 14th the company put the matter of the plaintiff's loss entirely into Norton's hands, to do with as his judgment might dictate, and thereafter he represented and acted for the company in connection therewith. Thus, in this matter, Norton was clothed with ail the powers of the company, and acted in its stead. Therein he was made the company's special agent, with unlimited authority. This appears not only from the undisputed testimony of Norton, but also from a letter written by the general manager to the plaintiff, dated December 20th, saying: "We have been fully advised both by our Brattleboro agents as well as our adjuster, Mr. Norton, regarding this loss, and we have hoped that a speedy and satisfactory understanding would be arrived at. Mr. Norton is thoroughly competent and fair-minded and there should be no difficulty in reaching an understanding with him. The matter is entirely in his hands to do with as his judgment may dictate, and whatever you two agree upon will be approved by this office;" and by a letter from the general manager to the plaintiff's attorneys, dated December 28, in which he says, "The matter was placed in the hands of our special agent, R. S. Norton of Portland, Me., to whom we will refer your letter." The defendant contends that, even though it could be said that Norton's acts and declarations constitute a waiver of the proof of loss, it cannot avail the plaintiff, since the policy provides that there can be no waiver by any officer, agent, or representative of the company, unless it be written upon or attached to the policy. In support of this contention we are referred to the case of Smith v. Niagara Ins. Co., before referred to. There the policy contained a provision that no officer, agent, or representative of the company should be held to have waived any of the conditions of the policy unless such waiver was indorsed on the policy. One Turner was a general agent of the company, having supervision of all its affairs, and its adjuster of losses within and for the New England States. It was held that, if not an officer, he was a representative, of the company, and came within that restriction in the policy, which was valid and binding on the parties. But we think the case at bar is distinguishable from that case in this regard,...