Lewis v. Guardian Fire & Life Assur. Co.

• Decision Date: 02 May 1905
• Citation: 181 N.Y. 392,74 N.E. 224
• Parties: LEWIS v. GUARDIAN FIRE & LIFE ASSUR. CO., LIMITED, OF LONDON, ENGLAND, et al.
• Court: New York Court of Appeals Court of Appeals

181 N.Y. 392

74 N.E. 224

LEWIS

v.GUARDIAN FIRE & LIFE ASSUR. CO., LIMITED, OF LONDON, ENGLAND, et al.

Court of Appeals of New York.

May 2, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Edward L. Lewis against the Guardian Fire & Life Assurance Company, Limited, of London, England, and Charles A. K. MacPherson. From an order of the Appellate Division (87 N. Y. Supp. 525,93 App. Div. 157) reversing a judgment in favor of defendants, the insurance company appeals. Affirmed.

George A. Strong, for appellant.

William B. Ellison and Arnold L. Davis, for respondents.

CULLEN, C. J.

The action is on a fire insurance policy; the plaintiff being the assignee of the owner of the insured premises, and the defendant MacPherson the assignee of the mortgagee. The policy insured the mortgagor, loss, if any, payable to the mortgagee ‘as his interest may appear.’ The plaintiff's assignor is a corporation organized under the laws of this state, and the plaintiff himself a resident and citizen of the state. The defendant MacPherson and his assignor are residents of the Dominion of Canada, the defendant insurance company an English corporation, and the contract of insurance was made in Montreal, Canada. The complaint, after making the usual statements requisite in an action on a fire insurance policy, alleged that the mortgagee refused to join with the plaintiff in the institution of the action, and that therefore he was made a party defendant thereto. The insurance company answered, alleging a breach of the conditions of the policy, in that other insurance had been effected on the property previous to the issue of the policy, which additional insurance was not noted or indorsed thereon. The defendant MacPherson answered, substantially repeating the allegations of the complaint, and asking judgment against his codefendant, that he be paid out of the insurance moneys the amount due on his mortgage. At the close of the evidence the trial court dismissed the complaint and the claim of the defendant MacPherson. Judgment was entered on this direction, and that judgment was reversed by the Appellate Division and a new trial granted. From the order granting a new trial an appeal has been taken to this court.

The policy was obtained from Patterson & Son, insurance agents at Montreal. In answer to the defense of other insurance not noted on the policy, which fact was conceded, the plaintiff gave evidence that, at the time the application was made for the policy, Patterson & Son were informed of the existence of such additional insurance. The law is well settled in this state that if the insurance company or its general agent is at the time of the issue of the policy notified of facts which, under the terms of the policy, would render it void if not noted on the policy, the company cannot avail itself of such a defense, though a different rule prevails as to breaches of condition occurring subsequent to the issue of the policy. Van Schoick v. Niagara Fire Ins. Co., 68 N. Y. 434;Wood v. American Fire Insurance Co., 149 N. Y. 382, 44 N. E. 80,52 Am. St. Rep. 733. This principle the learned counsel for the appellant concedes, but he insists in the first place that the evidence was insufficient to warrant a finding by the jury that Patterson & Son were the agents of the appellant. Without referring to the other evidence in this respect, it is a sufficient answer to this claim to say that on the policy delivered by the appellant there was written in two places-one on the face of the policy, one on its back-‘Patterson & Son, Agents'; and it is conceded that this was done not by the agents, but by the officers of the company in its office. It is true that some of the officers or clerks of the company testified that it was the habit of the company, whenever an application was presented to it through brokers, to so write the name of the brokers as agents on the policy, and that it was not intended to state by such indorsement that the brokers were in fact the agents of the company. This explanation, however, of what otherwise appeared to be an admission that Patterson & Son were the agents of the defendant, was not conclusive. It presented a question of fact to be passed on by the jury. In addition to this, the insured may have acted on the faith of the representation.Upon receiving the policy, and discovering the omission to note thereon the additional insurance, it may have relied upon the rule of law that the omission to note such insurance did not vitiate the policy, if Patterson & Son were the agents of the appellant, and therefore have omitted any step for the correction of the policy. It appeared that the policy in suit was issued from the general office in Montreal to the Pattersons, and that the member of that firm who obtained it was not the member with whom the plaintiff's assignor had dealt, and to whom it had told of the other insurance. It is urged that, as...