Whited v. Germania Fire Insurance

Smith, J.: The jury were instructed that if they should find from the evidence, that at the time when the renewal premium was paid to the defendant’s agent, he was notified by the plaintiff of the conveyance and mortgage, and he understood that the plaintiff paid the money to renew the policy for his benefit as mortgagee, they might infer'an agreement that it should be renewed for that purpose, and in that event they were further instructed, as is to be [194] inferred from tlie charge, that they might find for the plaintiff. The instruction was proper, in view of the evidence, provided the agent had power to waive the provisions in the policy requiring the interest of the assured, as mortgagee, to be stated in writing in the policy itself. The charge undoubtedly assumed the existence of such authority. That question, probably, should have been left to the jury, if it had been insisted on. (Van Allen v. Farmers' Joint Stock Insurance Company, 64 N. Y., 469.) But there was no exception to the charge, in that respect, or any other, and no request was made that the specific question of the agent’s authority be submitted to the jury. The question was treated on all hands as one of law, or, if of fact, one which the parties submitted to the decision of the court. (S. C., 17 S. C. N. Y. [10 Hun], 397, 402.) The evidence fully warranted the conclusion that the agent had such authority. The agent, who was called as a witness by the defendant, testified that he was the local agent of the defendant at Oswego, and that as such agent he solicited insurance, issued and renewed policies, noted the changes of title upon policies, issued renewal certificates, collected premiums, and paid premiums to the company. That being the scope of his agency, it is clear that in the circumstances of the case, the conclusion was well warranted that he had authority to waive a compliance with the conditions referred to, and that the agreement to renew, which the jury must have found by their verdict, was valid and binding on the company. ( Whitwell v. Putnam Fire Insurance Company, 6 Lans., 166, and cases there cited by Mullin, J.; Pechner v. Phœnix Ins. Co., id., 411; S. C. affirmed, 65 N. Y., 195; Shearman v. Niagara Fire Ins. Co., 46 id., 526; Pitney v. Glen's Falls Ins. Co., 65 id., 6.) ' In the case of Rohrbach v. Germania Fire Insurance Company (62 N. Y., 47), cited by the appellant’s counsel, the ruling of the court that notice to the agent, or his knowledge of facts, was immaterial and did not affect the company, was made in view of a provision in the policy, which constituted him the agent of the insured and not of the company. (Opinion of Folger, J., p. 62.) The policy in this case contains no such provision. The case of Alexander v. The Germania Insurance Company (MSS. op. of Rarallo, J.) was upon a policy containing a provision like that in the case of Rohrbach. [195] Certain rulings upon questions put by tbe defendant’s counsel ■were excepted to. The questions were improper, as they called for the conclusions of the witness on questions of law. It is unnecessary to refer to them more particularly. The judgment should be affirmed. Mullin, P. J., and Talcott, J. concurred. Judgment affirmed.