Solomon v. . Continental Fire Ins. Co.

This action was to recover upon a fire insurance policy issued by the defendant to the plaintiff's assignors, and with its consent transferred to the plaintiff.

The defense was based upon the single ground that the plaintiff omitted to give the notice of loss required by its policy. It was a New York standard policy, and contains the following provisions: "If fire occur the insured shall give immediate notice of any loss thereby in writing to this company. * * * No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements."

The issue arising upon this defense was tried before a referee, who decided that, under the facts and circumstances disclosed by the evidence, the defendant received sufficient notice of the loss within the requirements and conditions of the policy. As the decision of the referee does not state separately the facts found by him, and as the judgment entered thereon has been affirmed by the Appellate Division, upon this appeal all the facts warranted by the evidence and necessary to support the judgment are presumed to have been found. (Amherst College v. Ritch,151 N.Y. 282.)

The circumstances which surrounded the plaintiff after the loss were unusual and peculiar. He was an assignee of the parties originally insured, and the defendant's consent to the transfer of the policy to the plaintiff was not obtained by him personally, but by another. There were many other policies upon the property.

Under the evidence the referee was justified in finding that the plaintiff had no knowledge of the contents of the policy in question, and that he obtained neither the policy nor any information that notice of loss was required by its provisions, until the last week in January, 1894, which ended on the thirty-first day of that month, or until about fifty days after the fire and three days before the date of the notice. This notice was received February sixth as appears by a letter from the defendant to the plaintiff. A Sabbath intervened between the date of the notice and its receipt by the defendant. The fire occurred upon the sixteenth day of December, 1893. The policy was upon a stock of merchandise consisting principally of furniture. The building containing it was totally destroyed. The defendant was apprised of the destruction of the building and its contents upon the morning of the fire through a printed notice left with it by the committee of the fire patrol. This notice disclosed that the entire building was destroyed, and that it was occupied for furniture and storage.

At the time of the fire the policy in suit was in a safe in the building destroyed. The safe was removed from the ruins about six days afterwards, but the plaintiff was unable to open it. It was then taken to the manufacturer for that purpose. When finally opened it was evening and dark. Its entire contents which consisted of a great number of books and papers were at once removed and placed in a vault in the building where the plaintiff had his office. On the following morning he searched for the policy in the vault and among his papers, but was unable to find it as it had fallen to the floor behind a case of pigeon holes where it was subsequently found. It was not until the last week of January, and, as one witness testified, about fifty days after the fire that the policy was found.

The plaintiff had no books or papers in his possession which disclosed the names of the companies which had policies upon the property in question, and had no knowledge of the defendant's policy or of its requirements. While there was a conflict in the evidence bearing upon the question of the plaintiff's knowledge of the existence of this policy and its provisions, and in regard to his ability to obtain it, still, whether he had such knowledge or was able to obtain it earlier, was, under the evidence, a question of fact to be determined by the referee. It is obvious that the plaintiff could have had no purpose in delaying to serve the notice of loss beyond the time when it could be reasonably accomplished.

If the plaintiff exercised due diligence in seeking to obtain the policy, and in seeking for the information which would enable him to give the required notice, and he was unable to obtain it until three days before the date of the notice and six days before it was received by the defendant, it can hardly be held, as a matter of law, that the service of the notice was insufficient or too late under the requirements of the policy.

Whether, under all the circumstances, immediate notice was given within the meaning of the policy, when fairly construed, was the question to be determined in this case. The word "immediate," like "forthwith," does not mean instantly, but immediate notice is notice within a reasonable time. In determining what was a reasonable time, it was necessary for the referee to take into consideration the situation of the plaintiff and all the circumstances by which he was surrounded. If they justified him in finding that the plaintiff used due diligence in discovering the policy, in ascertaining what it required and in preparing and serving the notice of loss, then the referee was justified in determining that the notice was sufficient under the provisions of the policy.

May, in his work on Insurance, in effect says, that if the notice is required to be immediate, the requirements will be met if it is given with due diligence under the circumstances of the case, and without unnecessary and unreasonable delay, of which the jury are ordinarily the judges.

In O'Brien v. Phænix Ins. Co. (76 N.Y. 459) the policy provided that the assured should forthwith give notice to the company of the fire, and as soon after as possible render a particular account of the loss. The fire occurred March 8th, 1876. The affidavit to the proofs of loss was sworn to April 18th, 1876; they were served May 16, 1876, and it was held that the omission to serve the proofs at an earlier period was not an absolute bar to a recovery, but that the question whether the delay was unreasonable or not was one of fact for the jury.

In Carpenter v. G.A. Ins. Co. (135 N.Y. 298), where proofs of loss were not served until one hundred and fifteen days after the fire, it was held that the plaintiff was required to serve them within a reasonable time, and that the question whether that was a reasonable time was a question of fact and properly submitted to the jury.

In Griffey v. N.Y. Cent. Ins. Co. (100 N.Y. 417) it was held that, under the provision of a policy requiring the insured to forthwith give notice of loss, it was enough if he acted in the matter with diligence and gave the notice without unnecessary delay, and that the question whether the delay was or not unreasonable was one of fact for the jury.

In N.Y. Cent. Ins. Co. v. Nat. Protection Ins. Co. (20 Barb. 468, 475), where the notice was required to be served forthwith, in determining the effect of that provision it was said: "This provision has never been construed literally to require notice on the day. It has always been held that due diligence under all the circumstances was all that was required." (Inman v. Western F. Ins. Co., 12 Wend. 452.) The CentralInsurance Company Case was reversed (14 N.Y. 85) upon another ground, but was subsequently cited upon this question with approval in Bennett v. Lycoming County Mut. Ins. Co. (67 N.Y. 274) where the same doctrine was reasserted. The latter case was cited with approval in Matthews v. Am. Cent. Ins. Co. (154 N.Y. 458) where it was, in substance, said that the words "immediately after the fire," as used with reference to the notice of loss, are to be construed not literally, but in the light of what may be reasonable and possible in the case at hand.

In several recent cases this court has discussed the distinction between the two classes of conditions which are to be found in policies of fire insurance. As to those which operate upon the parties prior to the loss, such as the condition and situation of the property, the relations of the insured to it and the statements and representations preceding the contract, it has been said that they are matters of substance upon which the liability of the insurer depends, are important in pointing out the conditions and circumstances under which the insurer has agreed to become liable, and, consequently, should receive a fair construction according to the intention of the parties. It has also been said in the same cases that where the liability of the insurer has become fixed by a loss within the range of the contract, courts are reluctant to deprive the insured of the benefit of that liability by any narrow or technical construction of the conditions which prescribe the formal requisites by which the right is to be made available, and, therefore, that those provisions should be reasonably and not rigidly construed. (McNally v. Phœnix Ins. Co., 137 N.Y. 389; Paltrovitch v.Phœnix Ins. Co., 143 N.Y. 73; Sergent v. L. L. G. Ins.Co., 155 N.Y. 349, 355.)

While it may be that if the question of the plaintiff's reasonable diligence was before us to determine as a question of fact, we might reach a conclusion adverse to that of the referee, still, under the proof and peculiar circumstances of this case, and in view of the authorities to which we have referred, we are of the opinion that this court cannot hold, as a matter of law, that the service of the notice of loss was not within a reasonable time, or that the referee was not justified in finding that the defendant received sufficient notice of the plaintiff's loss under the condition of its policy.

We have examined the various authorities cited by the learned counsel for the appellant, but think none is in conflict with the conclusion reached, as those cases arose under circumstances which render them clearly distinguishable from the case at bar.

We have reached the conclusion that this judgment should be affirmed with less reluctance than we otherwise would, as it is evident from the proof that the defendant was sufficiently apprised of the fire on the same day it occurred to afford it an opportunity to make any investigation or adopt any means it deemed necessary for the protection of its interests.

The judgment should be affirmed, with costs.