Cheshire Brass Co. v. Wilson

Thayer, J. The original complaint left it doubtful whether the plaintiff had attempted to found its action upon a breach of contract to procure insurance, or upon the defendant’s tort in refusing to give the names of the insurance companies in which he had procured insurance. After an intimation by the court that the complaint was insufficient, two amendments, which are referred to in the statement, were added to the complaint. As amended, it is to be regarded as an attempt to state a cause of action sounding in tort; the wrongs complained of being, first, the defendant’s refusal to give the names of the insurance companies, and, second, his wrongful cancellation of the policies. The amended complaint contains no allegation that the defendant procured the plaintiff’s property to be insured, and, in the absence of such an allegation, no duty to state the names of any insurance companies is shown. But assuming that such duty existed and is properly shown by the complaint, and that it was neglected by the defendant, the court has found that the plaintiff’s further allegation, that it was thereby prevented from making its proof of loss, was not proven. The plaintiff was bound to prove this allegation as well as the defendant’s negligence. This involved showing its own freedom from negligence. The finding of the court is conclusive against the plaintiff upon this issue. In its draft-finding the plaintiff requested the court to find that there was no evidence that the plaintiff could have ascertained the names of the insurance *556 companies otherwise than by a statement of them by the defendant, and now asks for a correction of the finding, so that it shall comply with this request. But the plaintiff had made the allegation that it was prevented from making proof of loss by the defendant’s neglect to give the names, and the burden of proof was upon it to show that it had used reasonable effort to learn the names and make the proof. This was included in the issues formed by the pleadings. General Statutes, § 3490, provides that the insurance commissioner may, for the purpose of determining whether insurance companies are conducting their business in this State in a proper manner, and duly adjusting and paying their losses, require them to answer such questions as he may think necessary. If the plaintiff contended that any companies through their agents were improperly claiming that their policies had been cancelled, or were otherwise concealing their liability for losses, this statute afforded it an opportunity, by an application to the insurance commissioner, to learn the names of the companies and their claims as to their nonliability. If the facts are as the plaintiff claims, it would be the duty of the commissioner to call upon the different companies doing business in the Staté for a disclosure whether policies as claimed by the plaintiff had been issued by them to it, and their claims as to their non-liability for the loss thereunder. Until it appeared that the plaintiff at least attempted to use this means for learning the names of the companies, or some other means, as by a bill of discovery, and in the absence of a demand upon the defendant for the policies, the court could not find that the plaintiff had used due diligence- to learn the names of the companies. The court could not assume, as the plaintiff claims in its brief, that it had made every effort which it could have made to ascertain the names, and that the companies *557 which issued the policies would have refused to give the information that they issued them. It is not found that the plaintiff did not in fact know the names. The court has foun^ that the1 allegation that the plaintiff was prevented from making proof of loss by reason of the defendant’s neglect to give the names was not proven. The evidence furnishes no ground for changing this finding. The conclusion of the court that the defendant did not cancel the policies, is equally conclusive against a recovery by the plaintiff. It is found that the policies were duly procured, and that there was an attempted cancellation of them prior to the fire, but that, for want of the five-day notice required by the policies, the attempted cancellation was ineffective. The plaintiff’s claim that, upon the facts found, the defendant, after the insurance was procured, continued to represent the plaintiff, so that his attempted cancellation of the policies was a waiver by the plaintiff of the five-day notice, cannot be sustained. The general rule is that where an insurance broker or agent is employed by a person to procure insurance for him, the broker or agent becomes his agent until the insurance is procured, so that any knowledge of facts by the agent, or false statements made by him when procuring the insurance, are imputable to the insured; but, after the insurance has been procured, he ceases to be the agent of the insured, and has no authority to waive or to receive notice of the cancellation of the policies in behalf of the insured. 1 May on Insurance' (4th Ed.) § 67 G; Grace v. American Central Ins. Co., 109 U. S. 278, 283, 3 Sup. Ct. Rep. 207; Hermann v. Niagara Fire Ins. Co., 100 N. Y. 411, 415, 3 N. E. 341. The course of business between the parties may be such as to warrant the inference that the broker still has authority to receive or waive the notice; but in the absence of facts from which such an *558 inference may be drawn, the rule is as stated. The complaint in the present case alleges, and the court has found, that the defendant was employed to procure insurance upon the plaintiff’s property to a specific amount for the specified term”of one year. This he did. Under the decisions, he then ceased to be the plaintiff’s agent. The case shows no course of business between the parties from which it can be inferred that the defendant still represented the plaintiff so that he had authority to waive the notice of cancellation provided for in the policies. The plaintiff suggests in its brief and argument that as it appears from the finding that, although not prevented by the defendant’s misconduct from' making its proofs of loss, the plaintiff was thereby delayed in making them, there must have resulted to it trouble and expense because of such misconduct, although it did not thereby lose its remedy against the insurance companies, and that to indemnify it for such trouble and expense it was entitled to a judgment for at least nominal damages. In the complaint the plaintiff makes no claim for damages upon the ground that it was put to trouble and expense through delay in making proofs of loss caused by the defendant’s wrongful act, but, as already noticed, claimed for the entire amount of the insurance because it had lost it by being prevented, by the defendant’s refusal to give the names of the companies, from making the proofs, and by his wrongful cancellation of the policies. And there is nothing in the record showing that upon the trial any claim was made for a judgment for damages for trouble and expense incurred by reason of the delay caused by the defendant’s misconduct, or that any evidence was offered to show that there was such damage, or the amount of it. Upon the record, if entitled to a judgment on this ground, it could only have been for nominal damages, *559 for the recovery of which a new trial will not be granted. Ely v. Parsons, 55 Conn. 83, 102, 10 Atl. 499; Cooke v. Barr, 39 Conn. 296, 306. But the plaintiff elected to try its case upon the theory that it was prevented by the defendant’s wrong from making the proofs of loss, and thus lost the entire insurance. Having so elected, it was not entitled to a judgment for even nominal damages for a result of the defendant’s act which is not alleged, and to which a different rule of damages would apply. At the time the policies were cancelled upon the books of the companies which issued them, the defendant was allowed a credit by several of the companies to the full amount of the premiums. The plaintiff contends that ' the defendant caused the cancellation for the purpose of recovering this rebate, and that it was a wilful attempt to defraud on his part. The court has found “not proven” paragraph one hundred sixty-five of the plaintiff’s draft-finding, to the effect that the defendant secured this rebate by false statements made to the insurance companies, that the note which he had received in part payment of the premiums had not been paid. But if the plaintiff’s claim is correct; that the defendant obtained the rebate by fraud, it was fraud practiced upon the insurance companies, to whom alone he is answerable. It does not affect his relations with the plaintiff. As we find no error in the finding of the court that the plaintiff failed to establish the allegations of its complaint, it is unnecessary to consider whether there was error in the findings and conclusions of the court sustaining the defendant’s second defense, namely, that by reason of a mortgage given by the plaintiff after the insurance was procured and before the fire, the policies became void. It is assigned for error that the court delayed “ren *560 dering judgment until after two sessions of the court had passed.” From an addition to the finding, made at the plaintiff’s request, it appears that the judgment was not rendered until after the close of the session of the court next succeeding that at which the cause was tried. This is contrary to the letter of § 510 of the General Statutes. Without the consent, express or implied, of the parties to the action, that the judgment might be so delayed, it was erroneous; but with such consent the court might properly delay the rendition of the judgment. Lawrence v. Cannavan, 76 Conn. 303, 306, 307, 56 Atl. 556. The judgment-file states that the case was regularly continued to and tried at the time the judgment was rendered. The original draft-finding filed by the plaintiff contained no request for a finding that the judgment was improperly delayed, and the question now attempted to be raised was not among those which the plaintiff gave notice that it desired to raise. So far as appears from the finding, the delay may have been at the request or consent of the parties to the action or their attorneys. The court, having received no notice that it was intended to raise the question now raised by this assignment, was not called upon to find whether the delay was by consent. If the delay was by consent, the statement in the judgment-file is warranted. We are not warranted upon the finding before us in holding that the delay in the rendition of the judgment beyond the time fixed by statute was without the consent of the parties or their counsel. There is no error. In this opinion Prentice, C. J., and Beach, J., concurred, the latter taking briefs and acting in place of Hall, C. J., who died after the case was argued and before its decision; Roraback and Wheeler, Js., dissented.