Snyder v. Dwelling House Ins. Co.

• Decision Date: 05 July 1897
• Citation: 59 N.J.L. 544,59 N.J.L. 18,37 A. 1022
• Parties: SNYDER v. DWELLING HOUSE INS. CO.
• Court: New Jersey Supreme Court

37 A. 1022

59 N.J.L. 18

59 N.J.L. 544

SNYDER

v. DWELLING HOUSE INS. CO.

Court of Errors and Appeals of New Jersey.

July 5, 1897.

Error to supreme court.

Action by Frank R. Snyder against the Dwelling House insurance Company. A judgment for plaintiff was reversed by the supreme court (34 Atl. 931), and plaintiff brings error. Reversed.

Frank P. McDermott, for plaintiff in error.

C. & R. W. Parker, for defendant in error.

DEPUE, J. This was an action on a policy of insurance against loss by fire, dated August 27, 1892. The suit was tried in the court of common pleas of Monmouth county, and resulted in a verdict for the plaintiff. The property insured was a dwelling house situate at Freehold. The fire occurred August 9, 1894. Notice of the loss was promptly given, and was received by the company August 11th. The policy requires proof of loss, containing a statement setting out several particulars, and sworn to, to be rendered to the company within 30 days after the fire. Near the end of the policy is a clause that no suit or action on the policy shall be sustainable unless the insured shall have fully complied with all the requirements of the policy. The policy concludes as follows: 'This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions, if any, as properly are or shall be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy." Proof of loss such as required by the policy was not furnished until the latter part of October, which was after the expiration of the 30 days after the fire. To justify the failure to furnish proofs of loss in season, the plaintiff relied upon a waiver by agents of the company. The facts relied on for that purpose are these: Lockwood, the local agent of the company at Freehold, gave the company notice of the loss by a letter dated August 9th, saying also that the Phoenix Company had a policy of $1,000 on the household furniture. On the 13th or 14th of August, Nichols, a special agent of the company, came to Freehold. Nichols testified that he came there as the company's special agent, solely for the purpose of ascertaining the amount of the loss or damage. When Nichols arrived at Freehold, Mr. Walsh, an adjuster representing the Phoenix Company, was there. Lockwood testified that Mr. Nichols said to him, in the presence of the plaintiff, "Lockwood, I have arranged with Mr. Walsh to adjust the loss, and I can go on to Philadelphia and save time;" that he, Walsh, and the plaintiff then adjusted the loss at $1,100, and the plaintiff signed a paper agreeing to accept that sum from the defendant company. Lockwood further testified that he at that time asked the plaintiff if he had the specifications of the loss; that plaintiff said he did not have them then, but the company could have them at almost any time they desired; that he (Lockwood) then said to the plaintiff he would wait to see what the company required further. The plaintiff testified that Lockwood, after the paper was signed, told him that he had nothing further to do until he heard from the company in regard to the insurance. The force of this testimony arises from the fact that Lockwood participated in the adjustment of the loss, and advised the plaintiff that he had nothing further to do until he heard from the company. The plaintiff received no information from the company on the subject until, by a letter dated October 11th, signed by the assistant secretary, he was notified that the company disavowed liability upon the policy, for the reason, among other reasons, that proofs of loss had not been given to the company within 30 days. Lockwood testified that he was the resident representative of the company at Freehold, and had charge of issuing policies; that the way policies were issued by him was that the policies were sent to him signed, and in blank; that he was to fill up the policies, to issue insurance, either fire, lightning, or tornado, sign them, and deliver them to the insured, collect the premiums, and forward the premiums, less his commissions, to the company. If the presentation of proofs of loss was capable of being waived otherwise than by agreement indorsed upon the policy, in compliance with its terms, Lockwood's agency was such that the waiver might be made by him, and his acts and assurances were such as were competent evidence of a waiver. The trial judge gave the instruction to the jury that proofs of loss might be waived by the company by acts and declarations which led the insured to believe that it would not insist upon such a requirement, and that an agent "intrusted with policies of insurance in blank, and authorized to issue them upon the application of parties seeking insurance, is thereby clothed with apparent...