Putnam v. Commonwealth Ins. Co.

• Citation: 4 F. 753
• Parties: PUTNAM v. COMMONWEALTH INS. CO. PUTNAM v. LA CAISSE GENERALE DES ASSURANCES AGRICOLES ET DES ASSURANCES CONTRE L'INCENDRE.
• Decision Date: 04 November 1880
• Court: U.S. District Court — Northern District of New York

4 F. 753

PUTNAM v. COMMONWEALTH INS. CO.

PUTNAM v. LA CAISSE GENERALE DES ASSURANCES AGRICOLES ET DES ASSURANCES CONTRE L'INCENDRE.

United States Circuit Court, N.D. New York.

November 4, 1880

Edward C. Risley, for plaintiff.

James B. Perkins, for defendants.

BLATCHFORD C.J.

1. The defendants contend that the evidence shows that the insured property was burned by the fraudulent practices of the assured. The question is one of fact. The referee has found that the fire arose 'from some cause unknown.' His finding will not be disturbed except in a case where the finding of a jury on the same question would be disturbed. This is not such a case. On the contrary, on the evidence, a finding that the property was burned by the fraudulent practices of the assured would be set aside by the court.

2. The defendants contend that the plaintiff, through his authorized agent, was guilty of fraud in swearing to and presenting the proofs and claim that he did, in respect to the value of the goods burned. The evidence does not establish that the plaintiff knew that the goods were worth less than the value of them stated in the proofs of loss.

The referee has found, in the first case, that the value of the goods at the time of the fire was 'upwards of $12,000,' and, in the second case, that their value at that time was '$12,000.' It must be established, not only that the goods were worth less than the plaintiff set forth, but that the plaintiff made a fraudulent valuation of them. The evidence is not sufficient to establish either of these facts.

3. The defendant, in the first case, contends that its policy was void when issued. It contains a printed provision that 'if the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon, * * * this policy shall be void. ' The policy contains this clause in writing: '$3,000 other concurrent insurance permitted.' When the policy was issued there was $6,000 other insurance on the property, which continued in force until the fire. The application for the policy in suit was made to an agent of the company in Utica, N.Y., the company being established in Boston, Mass. The policy was signed by the officers in Boston, and was countersigned by the agent in Utica, and was delivered in Utica by him to the agent of the assured.

The policy contains this attestation clause: 'In witness whereof, the Commonwealth Insurance Company have caused these presents to be signed by their president, and attested by their secretary, in the city of Boston. But this policy shall not be valid unless countersigned by the duly authorized agent of said Commonwealth Insurance Company. ' Below that are these words: 'Countersigned at Utica, this sixteenth day of October, 1877. J. Carr & Son, agents. ' The policy contains this provision: '11. It is a part of this contract that any person other than the assured, who may have procured this insurance to be taken by this company shall be deemed to be the agent of the assured named in this policy and not of this company, under any circumstances whatever, or in any transaction relating to this insurance. ' The plaintiff claims that the evidence shows that the policy was issued and delivered by J. Carr & Son, with full knowledge that there was already $6,000 other insurance on the goods; that the issuing and delivery of the policy with such knowledge was a waiver of any prohibition against more than $3,000 other insurance; and that J. Carr & Son had authority as the agent of the company, to make such waiver notwithstanding the eleventh clause. The referee has found as a fact that, at the time the policy was delivered to the plaintiff by the defendant's agent, the fact that the plaintiff had other insurance on the merchandise to the extent of $6,000 was known to the agent of the defendant. He has found, as a conclusion of law, that the delivery of the policy 'by the defendant to the plaintiff, with the knowledge of $6,000 of existing insurance upon said stock of merchandise, was a waiver of the implied prohibition contained in the condition in said policy, permitting $3,000 additional insurance. ' The defendant excepted to the finding of fact 'that, at the time of the delivery of its policy, the fact that there was $6,000 other insurance on the property insured was known to its agent;' and to the conclusion of law 'that the delivery of its policy was a waiver of the prohibition contained in the condition in said policy permitting $3,000 additional insurance.'

The defendant contends that the finding that the agent knew of $6,000 other insurance was not warranted by the evidence. The plaintiff's agent, A. S. Putnam, who applied for the insurance, says that at the time he did so he told the defendant's agent, Carr, that the plaintiff already had $6,000 insurance, and wanted $2,000 more. Two policies, of $1,000 each, were then issued by Carr & Son to the plaintiff on these goods; one by the defendant and the other by a Pennsylvania company, each dated October 16, 1877. A month or less after that the two policies of $1,000 each were given up by the plaintiff to Carr & Son, and the policy in suit was issued in their place, bearing the same date and running for the same time from October 16, 1877. The $1,000 policy issued by the defendant, and so given up, contained the words, '$3,000 other concurrent insurance permitted.' It also contained the same clauses as to the policy becoming void, and as to agency and as to countersigning, as the $2,000 policy afterwards did, and it was countersigned 'J. Carr & Son, agents, October 16, 1877, at Utica. ' Carr testifies that when the original application was made, which resulted in the two $1,000 policies 'nothing particular was said,' except that A.

S. Putnam gave an order for $2,000 insurance on the goods. Carr says that he issued the two policies for $1,000 each, and delivered them to Putman. He adds: 'I don't remember anything being said as to the amount of other insurance at that time. ' Carr further says that when the policy in suit was issued he asked Putnam 'how much other insurance he had; he said $2,000 with one agent named Symonds, and $1,000 with Hoyt & Butler, and I wrote the policy accordingly. ' The fact was that there was one policy of $1,000 with Hoyt & Butler and two policies of $2,500 each with Symonds, and that Carr, instead of writing the $3,000 in the $2,000 policy for the time, had written it before in the $1,000 policy. Carr further says: 'I consented to the amount of insurance. He did not at that time, or at any other time, inform me that he had $6,000 insurance; nothing of the kind was said. I did not say, on his telling me that he had $6,000 insurance, that I would give him $2,000 more; nothing of the kind. What I have testified to is all that was said. ' 'I did not know that Putman had $6,000 other insurance. I first knew that fact after the fire. ' On his cross-examination Carr says: 'When these first two policies were issued I do not remember certainly whether anything was said as to the amount of the insurance. Mr. Mr. Putnam did not say in the second conversation that he had one policy with Hoyt & Butler and two with Symonds; no such thing. He said he had $2,000 with Mr. Symonds. This was previous to the second policy having been delivered. ' In rebuttal Putnam says: 'I did not say to Mr. Carr, at the time the two policies were surrendered and the one in suit given, that I had $1,000 with Hoyt & Butler and $2,000 with Symonds; did not say that at any time.'

It is a well-settled rule that the report of a referee as to the facts is, like the verdict of a jury, conclusive, as a general rule, in a case of conflict of evidence, and is, like such verdict, to be set aside only where the finding of fact is clearly against the weight of evidence. There is here one witness on each side. The burden is on the defendant to set aside the finding of the referee. The referee had the witnesses before him. On the part of the defendant it is urged that the fact that Carr wrote $3,000 is evidence that he so understood it; that he had no motive, if he knew it was $6,000, to put in $3,000; and that Putnam may have had the motive to say $3,000 in the fear that he would not be able to get $2,000 more, if it were known there was $6,000 already. On the part of the plaintiff it is urged (which is the fact) that the plaintiff had permission in the three policies, amounting to $6,000 to insure $19,000 more in other companies, and could have had no motive to conceal the $6,000. A. S. Putnam testifies that he did not read the first two policies when they were delivered to him, and did not examine the policy in suit when it was delivered to him, and that he first noticed the provision as to other insurance when the policy in suit was being used after the fire to make proofs of loss. On the whole evidence the case is not one for disturbing the finding of the referee that the fact of the existence of $6,000 other insurance was known to the agent of the defendant when he delivered the policy in suit to the plaintiff. This fact being so, it must be held that the conclusion of law thereon by the referee was correct.

The case of Whited v. Germania Fire Ins. Co. 76 N.Y 415, decided in March, 1879, is a direct authority in point. The policy there contained provisions that if the property should be sold, or if the interest of the assured should not be truly stated, the policy should become void; that any less than a distinct specific agreement, indorsed on the policy, should not be construed as a waiver of any condition therein; and 'that any person other than the assured, who may have procured the insurance to be taken, shall be...