Walrath v. Hanover Fire Ins. Co.

• Decision Date: 16 November 1915
• Parties: WALRATH, v. HANOVER FIRE INS. CO.
• Court: New York Court of Appeals Court of Appeals

216 N.Y. 220

110 N.E. 426

WALRATH,

v.HANOVER FIRE INS. CO.

Court of Appeals of New York.

Nov. 16, 1915.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Charles M. Walrath against the Hanover Fire Insurance Company. From a judgment of the Appellate Division (153 App.Div. 921, 138 N.Y.Supp. 101), affirming a judgment on a verdict for plaintiff, defendant appeal. Reversed, and new trial granted.

Frederick B. Campbell, of New York City, for appellant.

Michael D. Reilly, of Albany, for respondent.

COLLIN.

The plaintiff recovered at the Trial Term a judgment for damages sustained by reason of a breach by the defendant of a contract to insure against loss by fire buildings of the plaintiff. The Appellate Division affirmed the judgment. The appellant asserts that it is aggrieved by the judgment, because the complaint alleges, it asserts, as the cause of action, a breach by the defendant of an executed contract, whereby it did insure against fire the buildings of the plaintiff. It preserved throughout the trial by objections and exceptions the right to urge here its assertion.

The complaint consists of 22 numbered paragraphs. The first five state formal facts. Following thereupon are, in effect, the statements: On May 13, 1905, the defendant, through its general agents, Russell & Son, insured by a policy of fire insurance in the standard form prescribed by the laws of the state, payable to one Stedman as mortgagee, for a term of three years, the buildings of the plaintiff in expressed amounts. May 14, 1908, the plaintiff notified Russell & Son, he being unnotified and ignorant of the termination of and relying upon their agency, that he desired the policy renewed for a further term of three years, and accepted the renewal of said policy from them. They procured the issuance by the actual general agents of defendant of a policy of fire insurance numbered 378465, in form like unto the policy which expired May 15, 1908, by which defendant insured for a term of three years from May 15, 1908, the buildings. The plaintiff at the time of taking said insurance and since had an interest, as owner, in the buildings exceeding the amount of said insurance. July 12, 1908, and while said policy of insurance was in force, the buildings entirely burned. The plaintiff has duly fulfilled all the conditions of said insurance on this part to be performed, except paying the premium, the time for which was extended. He duly made and served the proofs of loss required by said policy of insurance. The interest of said Stedman in the property and in the insurance thereon aforesaid was superior to his interest, and Stedman transferred to him, prior to the commencement of the action, the claim against defendant arising out of said loss on the policy of insurance aforesaid. Payment of said loss has been duly demanded from the defendant, but no part has been paid. On May 14, 1908, Russell & Son having obtained possession of the policy of insurance numbered 378465 from the general agents of the defendant, sent the plaintiff a bill for the premium, and fraudulently and falsely represented therein that they, on behalf of defendant, issued the policy and delivered it to Stedman. After May 14, 1908, the general agents notified Russell & Son that the defendant had elected to cancel the policy. Russell & Son fraudulently concealing from the plaintiff and Stedman the desire of the defendant to cancel the policy, on or about May 23, 1908, surrendered said policy to the general agents and the defendant on or about May 23, 1908, wrongfully and unlawfully assumed to cancel it. The plaintiff, by reason of his ignorance of the termination of the agency of Russell & Son, in directing and in accepting the renewal of the policy of insurance acted and continued to act, until after the loss by fire, in reliance upon the general agency of Russell & Son and the issuance by them as general agents of the defendant of the new policy numbered 378465. Under the charge of the trial court the verdict was based upon the finding that the defendant made and violated an oral agreement to insure the buildings and deliver the policy to the mortgagee. The complaint does not state facts constituting, or if proved, establishing such an agreement.

[1] The rules of the Code of Civil Procedure prescribing the requirements of a complaint in a civil action are simple and liberal. Sections 481, 519. The right of a plaintiff to bring and recover in the action is constituted of certain facts-the facts which constitute the civil wrong he believed had been caused him by the defendant, and his claim for redress. He must state in his complaint plainly and concisely those facts. He need not classify or denominate the wrong nor ask for the precise relief which the law awards, nor confine his statement to the facts which are essential to his claim. If the complaint, by giving to the language of it...