Walrath v. Hanover Fire Insurance

Betts, J. (concurring):

The case was sent to the jury by the learned trial court on the theory that “ If the proof warrants it they will be at liberty to -return a verdict in favor of the plaintiff on the theory of a breach of contract to insure” in pursuance of the agreement to that effect. Under the careful charge of the court the jury brought in a verdict for the plaintiff for the full amount claimed. As bearing upon the question sent to the jury the record shows no written revocation of the appointment of George H. Russell or George H. Russell & Son as agents of the defendant, though the certificate of appointment of both of them is in the record. A later certificate of appointment of Messrs. Rose & Kiernan as such agents was introduced in evidence and appears in the record but that does not attempt to revoke the agency "of either Russell or Russell & Son. One E. Stanley Jarvis testified that he was a special agent of the defendant and was such special agent having charge of the agency of the defendant in Albany and vicinity in 1908. That he took up the agency of George H. Russell in 1905 and the authority of George H. Russell & Son was taken up in April, 1907. Ho authority of Mr. Jarvis to take up agencies, whatever that may mean, was shown and the record shows that so far as a written authorization was concerned the Russells have it and no written revocation is shown. In that connection it will be noted that the Russells resided in the city of Rensselaer, Rensselaer county, across from Albany, as did Walrath, and that Walrath testified that the Russells had an insurance office in the city of Rensselaer and also in Albany. Kiernan of Rose & Kiernan resided in Albany, but it does not appear where Rose resided. The evidence also shows that the policy presented in evidence issued by the defendant to the plaintiff and later cancelled had the name of the Russells on it. It also appears that the Russells were able to produce a policy issued by the defendant to take the place of the policy of the plaintiff that had expired. Whether their agency had been revoked or not, all these matters were before the jury to pass upon the question. Also, whether the Russells remained the agents of the defendant at the time the policy was to be renewed, that is, May 15, 1908, was for the jury to pass upon. Ho written notice whatever is brought home to the plaintiff of the revocation, if any existed, of the agency of the Russells for the defendant. On the contrary, the plaintiff *922had the bill sent by the Bussells to him for the insurance-policy in question, which bill has never been recalled by the Bussells or by any one on behalf of the defendant or otherwise. All the alleged defects that the Bussells testified they notified plaintiff that an inspector had found in his property existed in the residence and not in the barn, and the fire loss was in the barn and not in the residence. The residence did not burn. In Marshall v. Reading Fire Insurance Company (78 Hun, 83; affd., 149 N. Y. 617, without opinion) the syllabus says: “Where an insurance company, at the time of the revocation of the power of an existing agency, gave no public notice of the same, and left with the former agent policies in blank signed by the company, such revocation is not effective as against, a person subsequently insured in such company by such agent, in the absence of any proof that such revocation of authority was known to him at the time of the issuance to him of the policy.” While here it is not shown that the Bussells had any policies of the defendant, still when desired they produced a policy of the defendant for the plaintiff and the plaintiff denies that he knew of any revocation of the authority of the Bussells to act as agents for the defendant. (See, also, Hicks v. British Am. Assur. Co., 162 N. Y. 284.) In Manchester v. Guardian Assurance Company (151 N. Y. 88) the insured had conveyed his property to another person and transferred existing insurance upon such real estate to the purchaser. The general agent of the defendant assurance company had been notified of the transfer and requested to go to the bank where the- policy was and make the necessary indorsement upon it, which the agent agreed to do but did not do. A loss occurring, it was said “that an agent of a fire insurance company, who was authorized to negotiate contracts of insurance and to fill up and deliver policies executed in blank left with him for that purpose, had authority to make a parol preliminary contract to issue a policy, and that the recovery of the amount agreed to be insured was the proper measure of damages for the breach of such a contract." And, further, that as it was “quite probable that the plaintiffs were prevented from procuring other insurance by reason of their reliance upon the agreement of the defendant to make the proper indorsement upon the policy. * * * ■ The case falls within the principle upon which the doctrine of equitable estoppel is founded, and the defendant should be precluded from claiming a forfeiture of the policy on the ground of the absence of such an indorsement.” I think the judgment should be affirmed, with costs.