Pechner v. Phœnix Insurance

Daniels, J. The petition upon which the application was made for the removal of this action into the United States Circuit Court, stated that the suit was commenced by the service of a summons and complaint, on or about the first day of June, 1867. And it afterward avers that the plaintiff is a citizen of the State of Hew York. The petition is dated the eleventh, and it was sworn to on the twelfth day of June, in the year 1867. These averments did not show the plaintiff to have been a citizen on the day when the action was commenced; and that should have been shown to have been the fact to entitle the defendant to the removal of the action into the United States Circuit Court. (1 U. S. Statutes at Large, 79, § 12.) He might very well have been a citizen on the day when the petition was dated, and still not have been so when he commenced his action. Such changes are by no means uncommon under the naturalization laws of the United States. The statement made in the oath to the complaint, describing the plaintiff as of Chemung county, does not change the case. For he could have been of that county and a resident in it without being a citizen of the State. It is not every resident in the State that can properly be designated as one of its citizens. That term must be limited to such residents as, in addition to the fact of residence, possess the rights and privileges of citizens. But even if the statement should be held to an allegation of citizenship, it would not advance the position of the defendant. For the complaint contained in the case does not appear to have been sworn to until the fifth of June, in the — 416 — year 1869, nearly two years after the action was commenced. The jurisdiction of the court was clearly unaffected by the proceedings taken for the removal of the cause. And the defendant’s exception depending upon the ruling made concerning that portion of the case must, therefore, be overruled. (Holden v. Putnam Fire Ins. Co.) 46 N. Y., 1.) Under the evidence which was given in the course of the trial showing the agency of Perry and Scott, they were the defendant’s general agents, for they appear to have been authorized to transact all its business in Elmira. (lightbody v. North Am. Ins. Co., 23 Wend., 18; Carroll v. Charter Oak Ins. Co., 40 Barb., 292; Post v. Ætna Ins. Co., 43 Barb., 351.) And being general agents, they had, under the established law of the State, authority to waive the requirement contained in the policy, that other insurances should be indorsed upon it in order to sustain its validity as an insurance upon the property of the assured. (Frost v. Saratoga Mutual Ins. Co., 5 Denio, 154; Ames v. N. Y. Union Ins. Co., 14 N. Y., 253; Siddle v. Market Fire Ins. Co., 29 N. Y., 184; Boehen v. Williamsburgh Ins. Co., 35 N. Y., 131; Carroll v. Charter Oak Ins. Co.; Post V. Ætna Ins. Co., supra.) The evidence given by Strauss and the plaintiff, as witnesses, if it was entitled to credence, showed sufficient to constitute such a waiver. And for that reason, notwithstanding their contradiction by the witness Scott, the court could neither nonsuit the plaintiff nor direct a verdict in favor of the defendant. Their evidence showed an examination and inspection of all the policies by Scott, one of the agents, under circumstances requiring him to determine whether they were valid or not. And he pronounced them to be valid, including the one issued by the defendants, which could not have been the case unless he designed to waive, on behalf of the defendant, the requirement that the other insurances should have been indorsed upon it. If the jury believed these two witnesses, as by their verdict they appear to have done, then the defendant did through its agent have notice of the other — 417 — insurances which Strauss & Co. procured upon the property, and beyond that effectually waived the condition which made the validity of the policy dependent upon the written consent of the defendant to such other insurances. But even if there was no express waiver, but a mere notice of those insurances, the objection to the omission to indorse them was substantially waived on three distinct occasions. First, by the consent to the assignment of the policy in suit from Strauss to the plaintiff, then by the renewal of the policy to the plaintiff on the thirty-first of March, 1866, and again by the consent given the plaintiff to the removal of his stock from one store to the other, in the following month of April. If the agent at these several times knew of the other insurances which had been issued to Strauss & Co., those acts of themselves were sufficient to waive the want of the indorsement. (Carroll v. Charter Oak Ins. Co., 40 Barb., 292; Sherman v. Niagara Fire Ins. Co., 46 N. Y., 526.) Assuming, as may properly be done, from the verdict rendered by the jury, that the agent had notice of the existence of the other policies and waived the objection to the omission to have them indorsed upon the policy in suit, then the fact that new policies were taken out in lieu of the others, at the time when they expired, will not prevent a recovery by the plaintiff, even though the new policies were not brought to the notice of the defendant or its agent. For by the previous waiver, the defendant surrendered its right to object to the maintenance of that amount of other insurance upon the same property. As to that extent of other insurance, the defendant by its waiver had indicated its approval, and the plaintiff was at liberty to continue it in the companies issuing the policies to Strauss & Go., or in any other companies that might enjoy 'his confidence. It was in substance and effect a consent that other insurance might be held upon the property to the amount mentioned in the other policies issued to Strauss & Co. without the procurement of their indorsement. That was the fair and reasonable import of the act, and it was probably so understood by the plaintiff when he received the new poli — 418 — cíes in the other companies. By these policies no change was made in the aggregate amount of the insurance upon the property, and the defendant had no interest which could be prejudiced by the want, or promoted by the fact, of notice that they had been taken. (Benjamin v. Saratoga Mutual Ins. Co., 17 N. Y., 415.) In Brown v. Cattaraugus County Mutual Ins. Co. (18 N. Y., 385), the policy contained a clause rendering it void if the insured had any other insurance against loss by fire on the property, not notified to the defendant, and further declaring that if he should make any such insurance and should not, with all reasonable diligence, give notice to the secretary and have it indorsed, the policy should cease. It appeared in the case that the plaintiff obtained another insurance from the Ontario and Livingston Mutual, on the 9th of July, 1855. But the plaintiff proved that this was in renewal of a previous insurance which expired June 20, 1855. And the court held that this insurance was not within the terms or spirit of the provision requiring notice of other insurance afterwards procured. This authority must be conclusive upon this point; for it can make no substantial difference in the case, whether the subsequent policies for the amount previously insured are issued by the same or by other insurance companies. They are no more other insurances in the one case than they are in the other. In the authority referred to, that was greater reason than any which can be found in the present case for holding the new policy to be another insurance, for it was not issued until nineteen days after the first had ceased to exist. In view of this conclusion, it can hardly be important to inquire whether the court was right in the last direction given to the jury. But if it should be deemed to be so, no doubt can be entertained as to the propriety of that direction. Immediately preceding it, the court had been calling the attention of the jury to the three new policies which had been procured by the plaintiff and the effect of what was supposed to have been the interview in the summer concerning — 419 — them between him and the agent, Scott. And as to those policies, the judge observed: “ If Scott saw the policies and knew the meaning of them, and said it was all right, the plaintiff can recover.” As an abstract legal proposition, no fault can be found with this direction, for by the term “ it,” reference appears to have been made to the policy in suit. That clearly seems to have been the case, from what had been observed just before this statement was made. If he did see the policies, and then knowing the others were not indorsed upon the one in suit, pronounced that all right notwithstanding the omission, it exhibited a clear purpose to waive the condition. Because, without such a design, he could not properly or truthfully have declared the policy in suit to be all right. And that would ordinarily be understood as the effect of the words made use of by the agent Whether the evidence given relative to that circumstance was sufficient to justify the submission of that inquiry to the jury, was a question not made upon the trial. And for that reason, it need not be, and indeed cannot be, considered upon the present disposition of the case. Ho exception was taken presenting that precise point. The exception taken to the question whether Scott knew that the witness had other insurance with Ayers, the agent of the other companies, cannot be sustained, even though the question should he deemed to be improper in point of form. For it was important, as a fact, to prove that Scott did have that knowledge. But no suggestion was made showing that the question put to the witness was objected to as being formally improper. Jf that had been done, the inquiry could at once have been so modified as to have deprived it of all objectionable features. As the objection was made, even if the question was in form improper, it was too general to be allowed to prevail at this time. (Fountain v. Pettee, 38 N. Y., 184.) The exceptions taken to the evidence offered, to prove the waiver of the condition requiring other insurance beyond the two thousand dollars mentioned in the body of the policy to — 420 — be indorsed upon it, have already been disposed of, in substance, by the consideration of that evidence as being properly before the court and jury. This evidence did not' contradict the contract made between the parties, but merely tended to show the performance, or observance, of the condition by the assured to have been dispensed with after the policy was issued and delivered. Its object was to prove a subsequent modification of some of the terms of the contract, which can always be done, even by oral evidence and without a. new consideration. (Blanchard v. Weeks, 38 N. Y., 225.) Ho reason exists for interfering with the result in this case, and the defendant’s motion for a new trial should be denied, and judgment ordered for the plaintiff on the verdict. Hew trial denied.