Solomon v. Continental Fire Insurance

McLaughlin, . J. : This' action was brought to recover upon a fire insurance policy for a loss which occurred on the 16th day of December, 1893. The policy was originally issued to plaintiff’s assignor, but was thereafter transferred, with the consent of the defendant, to this plaintiff; Upon the first trial the complaint was dismissed, but upon appeal to the General Term of the Superior Court the judgment was. reversed and a new trial ordered. The second trial resulted in a . disagreement of the jury, and the third trial took place before a referee, who made a report in favor of the plaintiff, and from the judgment entered thereon this appeal is taken. The appellant insists that the judgment should' be reversed, because the plaintiff did not comply with the terms of the policy by giving notice of the loss of the property destroyed as therein provided. The policy provided that if a fire should occur. “ the insured” should “ give, immediate notice of any loss thereby in writing.” This notice was not. given by the insured until fifty-three days after the fire occurred. The plaintiff claims, and the referee has in effect found, that by reason of special circumstances this; delay was excusable and justifiable. If this contention of the plaintiff be correct, and the finding of the referee is sustained by the evidence, then the judgment should be affirmed; ■ otherwise, it should be reversed. It is settled law of this State that if a notice, of loss provided for under a fire insurance policy is served without unnecessary delay, then the plaintiff is entitled to recovér. The word “ immediate ” used in the policy under consideration, must have a fair and reason [215] able construction, viewed in the light of all the surrounding circumstances. (.Bennett v. Lycoming Co. Mut. Ins. Co., 67 N. T. 274; Griffey v. New York Central Insurance Company, 100 id. 417; Mathews v. American Central Insurance Company, 154 id. 449.) Before proceeding to discuss the reasonableness of the delay on the part of the plaintiff in giving notice of the loss, it maybe said that the defendant had actual immediate notice of the loss from its agent, the fire patrol of the city. The defendant, therefore, had opportunity to seasonably investigate the origin of the fire, and to take precisely the same measures and precautions for its protection that would have been afforded to it had written notice at that time been received from the plaintiff. And although the written notice provided in the policy would have been practically useless, we do not decide that it was unnecessary. The fact is referred to merely as a reason why the court should not be astute to declare a forfeiture of the moneys fixed by the loss and accruing under the jsolicy. Without, therefore, expressing any opinion as to whether or not such actual notice by the defendant from its agent would relieve the plaintiff from giving the formal notice required by the policy, we are of the opinion that the finding of the learned referee, that “ defendant received sufficient notice of the loss of the plaintiff within the requirements of the condition of the policy, requiring such notice,” should not be disturbed, and, if we are. correct in this conclusion, then it necessarily follows that the judgment should be affirmed. The testimony on the part of the plaintiff tended to show that the policy in suit, with others, at the time of the fire, was in a safe on the premises destroyed by fire, and that on account thereof plaintiff was unable to find or get the policy for about fifty days thereafter ; that during that time he had no knowledge of the names of the companies in which he was insured; and that as soon as the policy was found and defendant’s name and address ascertained, notice of loss in due form was sent the defendant. For six days after the fire the safe was buried in the ruins of the fire. It was then taken to the manufacturer and opened. The contents of the safe, consisting of many voluminous and miscellaneous papers, documents, books, bundles of indexes, records, leases, agreements, bills, etc., were put in boxes, placed in a truck, and carried away and placed in a vault for safe-keeping. It was dark at the time the safe was opened, and [216] it was impossible for plaintiff to find or look for the policy at that time. The fastenings of the different handles and packages of papers had become scorched and broken, and the contents disarranged. The next day plaintiff made search for the policy, but without success. The contents of the safe when put in the vault were stuffed into pigeon holes and laid on shelves. It is apparent that in this way the policy was slipped between the framework of the pigeon holes and the wall behind, and hidden from ordinary observation and search, and was only found by chance, although search was diligently made for it. • The plaintiff testified that he did not know he was insured with the defendant, nor did he know the terms and conditions of the policy until it was found. And that until the policy was found he had nothing, iñ his possession containing any information as to the names of the companies in which he was insured. The policy was not originally taken out by the plaintiff, but by his assignor. He also testifies that he called upon the brokers who effected the insurance for information, but did not obtain it. His testimony that he did not obtain the information is contradicted by the brokers. The referee adopted the plaintiff’s contention, and his finding in that' respect should be upheld. It is conceded that plaintiff sought the information. If he obtained it, no reason or motive is suggested why he should decline to give the notice. The credibility of the witnesses was a matter for the referee, as he had the advantage of seeing and hearing, the witnesses testify. On a mere question of fact, upon conflicting evidence, the decision of an honest referee who sees the witnesses, is better than that of any appellate court. [Delzer v. Buffalo Star Brick Co., 48 N. Y. St: Repr. 311; Ball v. Loomis, 29 N. Y. 412.) If the plaintiff’s contention be true, his delay in giving written notice of loss cannot, as a matter of law, be held to be unreasonable. (Carpenter v. Ger. Amer. Ins. Co., 135 N. Y. 298; McNally v. Phoenix Ins. Co., 137 id. 389; Mathews v. American Central Ins. Co., 154 id. 449.) The facts of the case, as shown upon this appeal, are substantially the same as appeared upon the prior appeal to the General Term of the Superior Court. That court held that if the facts were determined as now found, plaintiff would be entitled to recover. Defendant did not appeal from that decision, but was content to retry the [217] case under that ruling. A trial has' been had and conducted pursuant to the views expressed by that court. The orderly administration of justice will be. best subserved if that decision be regarded as the law of this case until otherwise decided by the court-of last resort. If it be conceded that the doctrine of res adjudieata does riot apply, yet respect for that decision, as well as a proper regard for the rights of the parties litigant, require that the judgment appealed from should be affirmed. It follows that the judgment should be affirmed, with costs. Van Brunt, P. J., and Patterson, J., concurred; Barrett, J., dissented.