American Central Insurance v. Hagerty

drawn from the evidence produced. McNally v. Phoenix Insurance Co., 137 N. Y. 389 ; 50 St. Rep. 680 . Appellants were local agents of the plaintiff at Plattsburg, acting under a written commission, and as such they issued the plaintiff’s policy to the insured, which contained a provision, viz., “This policy shall be cancelled at any time at the request of the insured, or by the company, by giving five days’ notice of such cancellation.” It seems, the premium for the policy was paid to the agents, and by them paid over to the plaintiff. On July 9, 1891, plaintiff’s general agents, Van Valkenburg & Hall, wrote to the defendants, asking to be relieved of the risk, because of certain reports of the financial standing of the insured. To that communication, on the 13th of July, 1891, the defendants replied, recommending that the policy be allowed to stand, on the ground that they thought the risk a good one, but adding that, if it was insisted on, the pqlicy would be cancelled. To that letter the general agents replied on the 16 th of July, stating that they preferred not to carry the risk, and asking the return of the policy, assigning that its rule was not to carry mortgaged property, as one of the reasons; and a somewhat similar letter was written again, on July 31st, asking for a return of the policy “to the files of the agents.” The defendants did not answer the last two letters. It seems by the evidence that on August 26, 1891, the general agents of the plaintiff drew upon the defendants for balances, and that in the draft was included the premium on the policy in question. It appears from the evidence that no further demand or claim was made on the part of the general agents, upon the defendants, for a return of the policy to be entered in the files of the plaintiff’s general agents; and there was quietude and acquiescence on the part of the general agents in respect to the policy in question, which continued for a period of time between July 31st and the date of the fire, which was in March following. The reports for the months of August, September, October, November, and December, 1891, and for January and February, 1892, were made, and on the face of the reports there was a recital of what policies were cancelled; the report for June showing no policy can-called, and the report for July showing policy No. 450,683 canceled. The report of August shows no policy canceled. The report for September shows policy No. 450,693 canceled. The report for October shows no policy canceled. The -report for November shows policy No. 450,698 canceled. The report for December shows two policies canceled,:—Nos.. 450,709 and 450,711. The report for January, 1892, shows two policies canceled, viz. Nos. 450,724 and 450,725. The report for February, 1892, shows two policies canceled, viz. Nos. 450,731 and 450,732. The report for March shows three policies canceled,—Nos. 450,-735, 450,741, and 450,742. It is to be observed that each of these reports show that the particular policy in question, to wit, the one issued to Phillips and Casey, was not canceled, and that

the reports were all sent to the general agents to whom the monthly reports were made, and to whom remittances were sent, and who had power to cancel policies, including the specific policy mentioned. Some evidence was given tending to show that in the course of the business, if instructions were given to cancel policies, unless the same were immediately obeyed, the company’s habit was to renew its call or “dun” from time to time for the return of what they called a “canceled policy,” until such time as they “actually got it,” and then the unearned part of the premium was included in the account current. There was some conflict in respect to the custom or habit of the parties in respect to transactions relating to canceled policies. It is apparent from the reports that we have already alluded to that the premium in this ■ease was never charged back to the plaintiff, and that the policy was never actually canceled. The general agent admits that, “when a policy of insurance was canceled pursuant to one of my instructions or directions, it was the custom to return it to the office, when the daily report went to New York to be put on file.” It seems the agents went out of business in April, 1892, and were succeeded by Platt, and the plaintiff about that time wrote for a full settlement, specifying the amounts due it, and that amount was ascertained and paid, but in the general settlement and at no other time were the defendants allowed or credited with the premium on the Phillips & Casey policy. This settlement was after the loss occurred under the policy, and that occurred March 4, 1892. On the 8th of March, 1892, the plaintiff, having received notice of the loss under the policy, admitted the same, and stated that “General Agent Van Valkenburg will be advised and requested to adjust.” On the 18th of March, 1892, Van Valkenburg wrote to the defendants in reference to it, and among other things he stated:

“I inclose a blank proof of loss, and would thank you to return it to me, when properly executed, for the loss of Phillips-.& Casey, at Eouse’s Point. By the way, there is a talk about this having been a ‘queer’ loss, and some Field men are crowing over their smartness in getting off shortly before the fire. What do you lmow in this direction? Thanking you in advance for attending to this matter, and with strongest assurances that you can count on me at all times to do anything possible to promote our mutual interests, I remain,” etc.

Subsequently the general agent acknowledged the proofs of loss, and on May 9th the general agent, Van Valkenburg, stated that he "had asked the general office to send a draft in payment of the loss. ' It seems that the claim was made in behalf of the defendants that the defendants were in no way liable in the premises until June, 1892. It also appeared in the evidence, affirmatively, by the testimony of Platt, that subsequent to July 31st he received requests to return other canceled policies, and nothing more was said about the Phillips & Casey policy. It appeared

from the evidence that there were instances in which policies were directed to be canceled, with suggestions as to moral hazard, and that subsequently they were withdrawn, at the suggestion of the defendants. Upon all the evidence, we are inclined to the opinion that a fair question of fact was presented for the consideration of a jury, as to whether the plaintiff, by reason of the circumstances disclosed, waived the request to have the policy canceled. We are inclined to think that such waiver might have been found by the jury upon the evidence given at the trial, and that it was not necessary, in order to support such a waiver, that it should be based upon any new agreement or an estoppel. Titus v. Insurance Co., 81 N. Y. 419 ; McNally v. Phoenix Insurance Co., 137 id. 402; 50 St. Rep. 680 ; Cairnes v. Bleecker, 12 Johns. 300 ; Jervis v. Hoyt, 2 Hun, 637 . Prom the course of business disclosed by .the evidence, it is quite apparent that Van Valkenburg had notice of the noncancellation and nonreturn of the policy to the files of his office, and that notice to him of that fact was notice to the principal. Cox v. Pearce, 112 N. Y. 641 ; 21 St. Rep. 808 . The nonaction, therefore, of Van Valkenburg, in the premises; his acquiescence, as well 'as the acquiescence of the plaintiff, in the noncancellation and nonproduction of the policy,—were pertinent facts for the consideration of a jury in determining the question whether the plaintiff had acquiesced in the existence of the policy, and the omission of the defendants to procure, a cancellation of the same by the return of unearned premiums, and a delivery of the policy to the defendants, to the end that it might be returned to the files of tbe plaintiff, whether kept by the general agent, Van Valkenburg, or kept by the plaintiff itself. While it may be said the circumstances are slight, we are inclined, as already intimated, to hold that question of fact was presented, which should have been submitted to the jury, and that the exception to the refusal to submit the question of fact to the jury presents an error which should lead to a new trial.

Judgment and order reversed, and a new trial ordered, with costs to abide the event.

, All concur.