Gaffey v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 05 June 1917
• Citation: 221 N.Y. 113,116 N.E. 778
• Court: New York Court of Appeals Court of Appeals
• Parties: GAFFEY et al. v. ST. PAUL FIRE & MARINE INS. CO.

221 N.Y. 113

116 N.E. 778

GAFFEY et al.

v.ST. PAUL FIRE & MARINE INS. CO.

Court of Appeals of New York.

June 5, 1917

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Agnes Gaffey and another against the St. Paul Fire & Marine Insurance Company. From a nonunanimous judgment and order of the Appellate Division (164 App. Div. 381,149 N. Y. Supp. 859) reversing the judgment of the Trial Term, which dismissed the complaint on the merits, and ordering a new trial, defendant appeals. Reversed, and judgment of Trial Term affirmed.

William J. Roche, of Troy, for appellant.

H. D. Bailey, of Troy, for respondents.

HOGAN, J.

May 1, 1911, defendant issued to plaintiffs a policy of insurance upon an automobile delivery truck, wherein it insured plaintiffs to an amount not exceeding $2,500 against loss or damage by fire. By the terms of the policy the automobile insured (body, machinery, and equipment) was by agreement of the parties valued at the sum for which the same was insured, namely, $2,500. The policy provided:

‘25. This company shall be liable to pay hereunder such proportion of any ascertained loss or damage as the sum insured bears to the said valuation.’

‘12. In ascertaining the amount of any partial loss or damage, only the cost of repairing, or, if necessary, replacing, the parts damaged or destroyed, including the charges incidental thereto, shall be considered.’

October 11, 1911, the automobile became disabled on the highway between the city of Troy, the residence of plaintiffs, and Ballston Spa, Saratoga county. The truck was left on the roadway, and on October 12th the fire occurred. This action was brought on the policy to recover for the loss resulting therefrom. Upon a trial of the action the complaint was dismissed at the close of the case. Upon appeal from the judgment entered thereon the Appellate Division, by a divided court, reversed the judgment and granted a new trial. From such order and judgment the defendant appeals to this court.

The plaintiffs on October 23d filed a proof of loss, claiming the loss sustained by them at $2,500. Under date of October 25, 1911, defendant's general agents addressed a letter to the plaintiffs, which reads:

‘St. Paul Fire & Marine Insurance Company.

‘New York, October 25, 1911.

‘Messrs. Sage & Gaffey, 800 River Street, Troy, N. Y.-Gentlemen: We have before us our inspector's report in reference to the damage to your automobile truck insured under policy No. 56492, and have to advise that as the car was damaged and taken apart to a considerable extent prior to the fire, and the extensive damage done by the fire was in consequence of this, there are a number of items, therefore, that we are not responsible for, such as the damaged gears, crank case, chains, etc., and in view of these circumstances we will settle this claim on the basis of paying you $2,000, or we will have the car shipped to New York for repairs. Please let us hear from you at once as to which of these propositions you desire to accept.

‘Yours very truly,

‘Whiton & Merges, General Agents,

‘A. W. S.

By A. Whelpley.'

On October 26, 1911, plaintiffs replied to the letter as follows:

‘Troy, N. Y., Oct. 26, 1911.

‘Messrs. Whiton & Merges-Gents: In reply to yours of the 25th, will say that, if you make the car as good as before the fire and not delay us too long, that will be all right. As far as the missing parts are concerned, the only part taken after we discovered the fire were the chains. We have located them. The rest of the stuff we look to you for.

‘Yours truly,

Sage & Gaffey,

‘800-802 River St., Troy, N. Y.’

November 2, 1911, defendant's agents wrote the plaintiffs, stating in effect that they had made arrangements to have the truck shipped to New York and would at once proceed with the repairs. The letter further stated, ‘We estimate that it will take about four (4) weeks to repair it in,’ and requested the plaintiffs to forward by express at once any parts they might have which were not with the truck. The plaintiffs had knowledge of the whereabouts of the chains belonging to the truck, as stated by them in their letter of October 26th. Upon the trial one of the plaintiffs testified that the chains were not sent as requested, and gave as a reason therefor ‘that they were up there on the ground; I didn't send them down; I thought, if they wanted them, they could come after them.’ No further action was taken by plaintiffs after the letter of November 2d. The defendant wrote plaintiffs on November 10, 1911, advising them that the repairs had been started, that they had not heard from them in reference to shipping the chains, and asked them to ship them, as defendant did not wish to delay the work.

Plaintiffs did not reply to any letters addressed to them by defendant after the 2d of November. They did not complain of the action of the defendant in moving the truck from Saratoga county to the city of New York for the purpose of making repairs thereon. January 8, 1912, defendant addressed a letter to the plaintiffs, informing them that the truck which had been damaged by fire, giving the number of the same, had been fully repaired and made as good as before the fire, according to correspondence and agreement in the letter of plaintiffs of October 26, 1911; that upon receipt of advices from plaintiffs the defendant would, as agreed, attach to the car, free of expense, any model of body which plaintiffs would suggest, not to exceed the cost of the body upon the car originally...