Miaghan v. Hartford Fire Insurance

Learned, P. J.: “ The principle that if the statements in the application relied upon as breaches of warranty are inserted by the agent for the insurers without any collusion or fraud on the part of the insured, the insurer is estopped from setting up their error or falsity, seems now well settled.” (Mowry v. Rosendale, 74 N. Y., 360; Whited v. Germania Fire Ins. Co., 76 id., 415; Pelton v. Westchester Ins. Co., 77 id., 606; Grattan v. Met. Life Ins. Co., 21 Alb. Law. J., 188.) In the present case the jury have found that the plaintiff told to the agent of the defendants exactly what his title was, and that the agent with that knowledge issued the policy in its present form. That brings this case within the rule of the recent decisions above cited, and others of a similar effect. It is urged by the defendant that by the policy no agent of the company could waive any of the terms or conditions unless such waiver should be indorsed thereon in writing, and that the condition that the policy should be void if the assured was not the absolute owner, and that fact was not expressed in the written portion of the policy, had not been thus waived. But a moment’s consideration will show that this condition cannot apply. To write a waiver of [61] the requirement that the assured should state that he was not absolute owner would only be to state in awkward language that the assured was not the absolute owner; and that is the very thing which the jury have found that the agent knew and neglected to write. The defendant insists that the plaintiff should have been non-suited, on the ground that the premises were vacant or unoccupied at the time of the fire. Tjhis. question depends on the construction of a clause in the policy. We think that the meaning of that clause is, that the policy is to be void if the premises become vacant or unoccupied, and so remain for a period of more than fifteen days without notice, etc. If the property be a mill or manufactory, the ceasing to be operated is equivalent to vacancy, etc. The question of fact as to whether the premises were vacant or unoccupied for fifteen days was submitted to the jury. We do not think there was any improper use of discretion in allowing the plaintiff to amend his complaint by increasing the amount demanded. He was not estopped by his proof of loss. (McMasters v. Ins. Co. of N. Am., 55 N. Y., 222.) And evidence was subsequently given on the trial that the claim was stated at a less amount in the proofs of loss than the actual damage, in order to obtain a speedy settlement. We know of no reason why the proofs of loss should be conclusive on the party who makes them. Of course they may be used as evidence against him, because they are his statement. But in no respect have they the qualities needed for an estoppel mpais. Proof that the plaintiff did not read the policy was proper. It tended to show that he relied on the agent’s acts. Whether Smith was sufficiently acquainted with the property to express an opinion, was a question which necessarily rested in the discretion of the justice who tried the case, unless there were an entire absence of proof as to his competency. The judgment and order should be affirmed, with costs. Boakdman and Bocees, JJ., concurred. Judgment and order affirmed, with costs.