Quinlan v. Providence Washington Ins. Co.

• Decision Date: 24 May 1892
• Parties: QUINLAN v. PROVIDENCE WASHINGTON INS. CO.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 356

31 N.E. 31

QUINLAN

v.PROVIDENCE WASHINGTON INS. CO.

Court of Appeals of New York.

May 24, 1892.

Appeal from supreme court, general term, fourth department.

Action by Daniel Quinlan against the Providence Washington Insurance Company of Providence, R. I., on a policy of fire insurance. From a judgment of the general term, (15 N. Y. Supp. 317,) affirming a judgment of nonsuit, plaintiff appeals. Affirmed.

Mullin & Griffin, for appellant.

A. H. Sawyer, for respondent.

The other facts fully appear in the following statement by ANDREWS, J.:

Appeal from an affirmance by the general term of the fifth department of judgment of nonsuit in action on a policy of fire insurance on a dwelling house at Cape Vincent, Jefferson county. The policy was issued by the agent of the defendant, having power to countersign and issue policies furnished in blank by the company, within the territory covered by his agency. It was a standard policy in the form and containing the printed conditions prescribed by the act of 1886. It is dated July 12, 1887, and insured for three years a dwelling house of the plaintiff in the sum of $500. The plaintiff had insurance on other property in different companies, and by an arrangement between him and the agent of the defendant his policies were left in charge of the latter, who was to attend to the plaintiff's interests in case of any loss by fire. The defendant's policy contained, among other conditions embraced in the standard policy, a condition that it should be void, unless provided by agreement indorsed on or added to the policy, ‘if, with knowledge of the insured, foreclosure proceedings be commenced, or notice of sale of any property covered by the policy by virtue of any mortgage or trust deed.’ Also a provision that in case of fire the ‘insured shall give immediate notice of any loss thereby, in writing, to the company, * * * and within sixty days after the fire, unless such time is extended in writing by this company, in writing, signed and sworn to by the insured,’ containing certain particulars enumerated. By the concluding clause in the policy it was provided that ‘no officer, agent, or other representative of the company shall have any power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement, indorsed hereon, or added hereto; and as to such provisions or conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.’ The part of this clause relating to added conditions or provisions is not material here, as none were added to the policy in question. After the policy was issued, and before the fire, the plaintiff mortgaged the premises on which the property insured was situated, in connection with other premises, for $3,500. A foreclosure of the mortgage was commenced by process served on the plaintiff May 27, 1889,-20 days before the fire which destroyed the insured premises, which was on June 16, 1889 The company had no notice of this foreclosure. The policy of insurance was, at the request of plaintiff, delivered by Kelsey, the agent who issued it, to the mortgagee upon the execution of the mortgage, and there was indorsed thereon a clause making the loss, if any, payable to him. In February thereafter (1889) the policy, then in possession of the mortgagee, was burned in the burning of a building in which it was deposited, and no duplicate policy was applied for or issued. In August, 1888,-about 10 months before the fire,-Kelsey ceased to act as agent for the defendant, and one Block was appointed agent in his place, who before the fire issued to the plaintiff a policy in the defendant's company on other property; and Block kept the policy, with others issued to the plaintiff, in his possession, apparently under an arrangement similar to that previously had with Kelsey. The plaintiff never served any notice of loss on the company. Kelsey, the former agent of the defendant, on July 19, 1889,-33 days after the fire,-addressed a letter to the company, saying that he had just discovered, in looking over his account with the plaintiff, that the defendant had a risk on the property, and adding: ‘Not knowing anything further, whether reported by your agent, or whether adjusted and paid, I take the trouble to make this report, feeling then as if I had done my duty.’ The company replied that the matter had already ‘had our attention.’ The letter of Kelsey was not written in behalf of the plaintiff, or with his knowledge at the time, but he testified that Kelsey informed him about a month after the fire that he had written the company, and that they informed him they were paying attention to the matter. ‘He said he thought it would be all right; that he could collect it.’ No proofs of loss were served on the company until January 8, 1890,-about seven months after the fire. The company refused to accept the proofs, and returned them. The witness Kelsey testified that in case of loss he would notify the company, and it would send an adjuster, who would prepare proof of loss, and settle the claim. But it appeared that only one loss had occurred during his agency for the defendant, and that it involved a few dollars only, and was adjusted by a special agent. The plaintiff testified that he did not read the policy, and was ignorant of its conditions. The trial judge refused to permit proof that Kelsey knew of the commencement of the foreclosure proceedings, and assured the plaintiff at the time that no harm could come to him therefrom. The court, at the close of the whole case, directed a nonsuit.

ANDREWS, J., ( after stating the facts.)

If the rights of the parties depend upon the contract of insurance as expressed in the policy, there can be no hesitation in affirming the judgment of nonsuit. The provision as to the commencement of foreclosure proceedings; the requirement that the insured, in case of loss, shall give immediate notice in writing to the company; and the other requirement that within 60 days after a...