Von Wien v. Scottish Union & National Insurance — 8 N.Y. St. Rep. 150

Majority

p. 150

Samuel Von Wien, App’lt, v. The Scottish Union and National Ins. Co., Resp’t.

(New York Superior Court, General Term,

Filed February 14, 1887.)

Headnote

Insurance, fire—Cancellation of policy.

The plaintiff obtained five policies of fire insurance, each of like amount, in different companies, through an agent, all of which were delivered to him. He only paid three-fifths of the total premiums to the agent, and subsequently delivered up two of the policies to be canceled, The agent having paid the premiums on the two returned to be canceled, had two others canceled instead, one being the one in suit. He afterward tried to have the plaintiff keep the two which he offered to return, and deliver to be canceled the two which had been canceled. Pending negotiations the property was destroyed. Held, that the company attempted to cancel the policy by agreement with a person who assumed to act for plaintiff, but who was without authority, and without notice to the assured, and that such cancellation was ineffective and the policy remained in full force.

Appeal from judgment in favor of the defendant entered on the direction of the court, without a jury.

Benno Loewy. for app’lt; Wm. A. Jenner, for resp’t.

The only question in this case is whether the policy of insurance sued on was canceled. It was held by this court on a former appeal (52 Supr. Ct. Repts.,489), that as the policy of insurance was delivered to the plaintiff without requii’ing the payment of a premium, a presumption was raised that a credit was intended and the pre-payment of the premium waived; that Rieger’s authority to act for the plaintiff ceased on procuring the policies, and that he had no authority to cancel the policy or to receive notice of said cancellation from the insurance company.

The court found the execution and delivery of the policy; that the same remained in plaintiff’s possession up to the time of the trial; that the plaintiff employed one Spitzer to procure $5,500 insurance* on his property; that said Spitzer employed' Rieger to procure such insurance.

The said Rieger did procure five policies in the sum of $1,100 each. Two of the said policies being in the Ger-mania Insurance Co., one in the defendant company, one with the Transatlantic company, and one with the Mechanics’ and Traders’ Ins. Co. All the policies were delivered to the plaintiff and retained by him; that the premiums due on all of said policies amounted to $166, of which plaintiff paid said Spitzer $100, and the balance of the premiums remained unpaid.

p. 151

That by an agreement between defendant and Rieger acting for plaintiff duly authorized, the said policy with defendant was canceled and the said insurance ceased.

The question presented is whether there is any evidence to sustain the finding of fact that Rieger was authorized by the plaintiff to cancel the policy for him: Plaintiff’s evidence tended to show that the five policies being in plaintiff’s possession,. Spitzer demanded payment of the balance due for premiums. Plaintiff then said, ‘ ‘ I don’t want your policies; ” went to the safe and then said he had enough insurance, and didn’t want any more, and gave Spitzer two policies, one in the Transatlantic Co. and one in the Mechanics’ and Traders’ Co. Spitzer took these two policies and delivered them to Rieger and ordered them canceled. Rieger, out of "the $100 paid by plaintiff, had paid the premiums on these two policies, but had not paid the premiums on the policy in suit.

It is very clear that this transaction gave no authority to Spitzer or Rieger to cancel the policy in suit. Plaintiff said he had enough insurance and did not want any more. He had paid for three of the five policies and the delivery of two of the five would be an authority to cancel the two delivered, certainly not the three retained.

The contracts of insurance were separate with different companies and if two were to be canceled, it was for the plaintiff to say, which of the policies he wished canceled and which retained.

It appears that neither the plaintiff or Spitzer knew at the time that the premium on the defendant’s policy had not been paid by Rieger and there is nothing to justify the court in holding that plaintiff conferred any authority at that interview on Spitzer, to cancel any policies except the two delivered.

I think, therefore, the cancellation of the policy with the defendant by Rieger and the company was unathorized by the plaintiff, and that the finding that plaintiff authorized Rieger to cancel the policy is without evidence to sustain it.

Defendant claims, however, that plaintiff ratified the cancellation of the policy. There is no finding as to such ratification or as to any interview between Rieger and the plaintiff after the policy was canceled and plaintiff denies the testimony of Rieger in which such conversation is related.

Taking Rieger’s testimony as true, however, I do not think there is any evidence of such a ratification. Rieger stated that in the afternoon of the day or the morning after the attempted cancellation, he went to plaintiff’s store and took the two policies delivered to Spitzer; that Rieger said to plaintiff: “I understood he said he did not want

p. 152

this insurance, and I asked him. if that was so. He said yes, he did not want it.” After some conversation plaintiff said that, “on the following Saturday, if I gave him these two polices, he would bring down the other two and give. them to me and eleven dollars. I did not want a scene in the saloon.- I put on my hat and left. That was on Tuesday before the fire.”

Rieger was not the agent of the defendant, nor was he acting on its behalf. He had assumed to act for the plaintiff without authority and there was no evidence that he expressly informed the plaintiff what he had done. There could be no ratification of his acts without full knowledge by the principal of the act done by Rieger and of his right to# repudiate that act as unauthorized. The only thing that plaintiff did was to make a proposal for the settlement of the dispute and that Rieger did not accept.

It is clear that the evidence would not have justified the court in finding that there was such a ratification. - Nor did the company cancel the policy under the right therein reserved. The policy provides that: “It (the policy) may also be canceled at any time by the company on giving a written or verbal notice to that effect and refunding a ratable proportion of the premium. Under such a provision, the policy could only be canceled by a personal notice to plaintiff or to his agent authorized to receive it. Hermann v. Niagara Insurance Co., 100 N. Y., 415 .

The company attempted to cancel the policy by agreement with a person who assumed to act for the plaintiff, but who was without authority and without notice to the assured and such cancellation was, I think, ineffective, and the policy remaining m full force.

Applying this rule as settled by this court on a former appeal, I do not think there is any evidence to show that plaintiff had ever authorized Spitzer or Rieger to cancel the policy or ratify such cancellation.

The judgment must, therefore, be reversed and a new trial ordered, with costs to abide the event.

Freeman, J., concurs.