Robbins v. Springfield Fire & Marine Ins. Co.

• Decision Date: 26 May 1896
• Citation: 44 N.E. 159,149 N.Y. 477
• Parties: ROBBINS v. SPRINGFIELD FIRE & MARINE INS. CO.
• Court: New York Court of Appeals Court of Appeals

149 N.Y. 477

44 N.E. 159

ROBBINS

v.SPRINGFIELD FIRE & MARINE INS. CO.

Court of Appeals of New York.

May 26, 1896.

Appeal from supreme court, general term, Fifth department.

Action by Edward A. Robbins against the Springfield Fire & Marine Insurance Company. From a judgment for plaintiff, ordered by the general term (29 N. Y. Supp. 513) on overruling motion for new trial, defendant appeals. Affirmed.

This action was brought upon a policy of insurance issued by the defendant to the plaintiff, dated January 28, 1892. It was issued by Harry H. Falkner, who was the defendant's agent at Le Roy, N. Y., and authorized to solicit insurance, issue and cancel policies, receive premiums, remit the same to the company, make surveys, and determine how much insurance was to be placed upon property to be insured. The property insured consisted of a steam engine, boiler, and other machinery, materials, and articles of personal property usually employed in the laundry business, his stock of shirts, collars, and gentlemen's furnishing goods, and the shirts, collars, and other articles which belonged to others, and were held by him for the pruposes of his business as a laundryman. His place of business was situated on the north side of Main street, in the village of Le Roy. The property thus insured was destroyed by fire on the 9th day of February, 1892, and the amount due under the defendant's policy was adjusted at the sum of $475. The policy contained a provision that ‘this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage.’ It also contained the other provisions usually contained in the standard fire insurance policy, among which there was a provision making the policy subject to the stipulations and conditions contained in it, and also a provision to the effect that no officer, agent, or other representative of the company, should have power to waive any condition or provision of the policy, except such as might, by the terms of the policy, be subject to the terms indorsed thereon or added thereto; and that, as to those provisions and conditions, no officer, agent, or representative should be deemed or held to have waived any of them, unless the waiver was written upon the policy. When the policy was issued, there was a chattel mortgage upon the property insured and belonging to him, which was given by the plaintiff to one McKay, to secure $475, upon which there had been paid $125. On the trial the defendant's counsel stated that no question would be made as to the amount that the plaintiff was entitled to recover for the loss under the policy, if a right to recover was established. The plaintiff testified that he had a conversation with the defendant's agent in reference to this mortgage at the time when he applied for the insurance; that the conversation was: ‘I told Mr. Falkner that I had deposited the money in Lathrop's bank at Le Roy to pay this chattel mortgage, and told him I wished to be insured. I told him that the mortgage or this note was held in Geneseo, and the money was obliged to be sent there before it would be paid, and he said: ‘Well, if you have deposited the money in the bank, I will insure you from noon to-day,’ and there was nothing more said about it at that time. I called his attention to this chattel mortgage, and told him that this was the mortgage that I had paid. That was the only mortgage I ever had. I deposited the money to pay it on the 28th day of January.' The plaintiff also testified that he did not see Falkner in reference to this insurance before that day. Falkner was called as a witness for the defendant, and testified that the application for the insurance by the plaintiff was made a few days before January 28th. His testimony as to what took place upon that occasion is: ‘That application was made at my office. Mr. Robbins asked me if I could insure his property, and at the same time he says: ‘I am all clear now.’ I told him I could not, if it were chattel mortgaged. He says: ‘I am all clear now, or, at least, I have the monev in the bank to pay it, and it will be paid immediately.’' Upon his cross-examination he testified: ‘The only time I had a conversation about the chattel mortgage was the first time, in which he said, ‘I am all clear; the chattel mortgage is paid, or I have the money in the bank to pay it, and it will be paid immediately.’ That was the way he qualified it.'

The evidence of the plaintiff was not contradicted by the defendant's agent, otherwise than as already indicated. There was no direct contradiction or denial of the plaintiff's testimony to the effect that he told Falkner that he had deposited the money in Lathrop's bank at Le Roy to pay the chattel mortgage; that the mortgage or note was held in Geneseo, and the money had to be sent there before it could be paid; and that Falkner said: ‘Well, if you have deposited the money in the bank, I will insure you from noon to-day.’ The money to pay the mortgage was deposited in the bank at Le Roy at that time, was subsequently sent to the agent of the mortgagee, the mortgage was paid, and it was discharged on the third day of the following month. The policy was delivered by the defendant's agent to the plaintiff on the 13th day of January, 1892.

When the testimony was closed, the defendant's counsel asked the court, ‘to direct a verdict for the defendant, on the ground that at the time of the issuing of the policy the property insured thereby was incumbered by a chattel mortgage, and that there was no agreement indorsed upon said policy, or added thereto, in reference to such chattel mortgage.’ That motion was denied, and the defendant duly excepted. ‘Plaintiff's counsel thereupon asked the court to direct a verdict in his favor for the sum of $501.61, on...