Arkell v. Commerce Insurance

Learned, P. J.: Under the decisions in Whitwell v. Putnam Fire Ins. Co. (6 Lans., 166); Pechner v. Phœnix Fire Ins. Comp, (id., 411); Van [457] Allen v. Farmers' Joint Stock Ins. Co. (4 Hun, 413); Parker v. Arctic Ins. Co. (1 N. Y. S. C., 397, affirmed in Court of Appeals ; see case last previously cited), it must be cousidered as settled that a general agent of an insurance company, (such as Brown Stafford & Son were), can waive by parol a condition inserted in a policy for the benefit of the company; even although the policy provides that such condition can be waived only in writing. The clause of the policy which is most directly in point is the following: “Lights. The generating or evaporating within the building, or contiguous thereto, of any substance for a burning gas, or the use of gasoline for lighting, is prohibited unless by special agreement indorsed on this policy.” Now we have the consent of the company, through their agent, to the generating of a substance for a burning gas. They fix the distance and thus give a definite meaning to the indefinite word “ contiguous.” Their agents are actually present when the tank is put in, and approve of it. But it is urged by the defendants, that even if the agents did consent to the generating of a substance for a burning gas, yet he did not consent to the “ use of gasoline for lighting.” It was, however, apparent that the tank and apparatus were put up for the purpose of generating gas out of gasoline. They were connected with the building; and it would be most unreasonable to say that the defendants consented to the construction of the tank and the necessary apparatus for lighting the building with gasoline, but did not consent to their use. The objection that the agent did not waive the provision, requiring any waiver to be indorsed on the policy, seems to be overruled in the case of Parker v. Arctic Fire Insurance Company, cited above. It is true that in that case the waiver was by the secretary, while here it was by the general agent of the company at Canajoharie. But the doctrine of Pechner v. Phœnix Insurance Company, above cited, and of Standard Oil Company, v. Triumph Insurance Company (10 S. C. N. Y. [3 Hun], 591), seems to establish the power of such general agent to waive this condition. The plaintiffs appear to have acted in good faith. They told the agent that they would not put in the gas works unless they had [458] the permission of the companies. He gave them such permission provided the tanks were fifty feet from the building, and they complied with that requirement. He was present and saw them putting it in. It would certainly be unjust that the agent of the defendants should lead the plaintiffs into doing an act, under the assurance that it would not affect their policy ; and then that the defendants should defeat a recovery, by reason of that act. The judgment should be affirmed, with costs. Present — Learned, P. J., Bockes and Boardman, JJ. Judgment affirmed, with costs.