Playman v. Commercial Underwriters

Mr. Justice McBride delivered the opinion of the court. 1, 2. The defendant Commercial Underwriters at Commercial Inter-Insurance Exchange is a combination of firms, corporations and individuals for the pur [672] pose of providing indemnity among each other from fire loss or other damage to their own property, and is presumably organized and acting under the provisions of Chapter 222, Laws of 1911. The plaintiff entered into the combination, giving to defendant Guy L. Wallace & Co. a power of attorney to act for and represent him in the combination; a like power presumably having been executed by other participants therein. The authority of the attorney is defined and limited as follows: “Now, therefore, I, C. H. Playman, hereby constitute and appoint Guy L. Wallace, E. A. Tyler, and F. E. Hitchcock, under the firm name of Guy L. Wallace & Co., attorneys for us and in our name, place, and stead, for the following purposes, viz.: 1. To exchange with other persons, firms, or corporations indemnity against loss or damage by fire or lightning in the_ amount of $2,000 and to that end to subscribe and deliver all necessary contracts whereby we shall be bound to so exchange indemnity against loss or damage by fire or lightning; and to change, modify or cancel such contract or contracts of indemnity; to adjust and settle our proportion of all losses that may occur under any such contract; to appear for us in any legal proceeding and to institute, prosecute, defend, compromise or settle any legal proceeding that may arise out of any such contract' for the exchange of indemnity; and it is expressly understood that this power of attorney is made for no other or different purpose than to authorize said attorneys in fact to exchange for us with other persons, firms or corporations indemnity against loss or damage by fire or lightning accruing to their own property; and that the power of said attorneys as hereby granted is also limited,” etc. The power of attorney is in the usual form of such instruments, and does not create any express trust in favor of any participant in the combination. Wallace [673] and Hitchcock alone were served and the court rendered a personal judgment against them. This was error. They were not even necessary parties to the action, and the court should have granted a nonsuit. The case of Lawrence v. Schaefer, 19 Misc. Rep. 239 (42 N. Y. Supp. 992), cited by counsel for respondent, is not in point. That case involved the right of the insured to sue each of the underwriters of a Lloyd’s policy to recover for a loss within the terms of the policy, which, among other clauses, provided: “No action shall be brought to enforce the provisions of this policy except against the attorney, and representing all the underwriters, and each of the underwriters hereby agrees to abide the result of any suit so brought, as fixing his individual responsibility hereunder.” It will be seen that in that case the policy expressly provided for an action against the attorney, who was also an underwriter, and the court held that by the terms of the policy he was the trustee of an express trust. No such condition appears here, either in the policy of in the power of attorney. The motion for a nonsuit should have been granted. 3. Another objection raised was that plaintiff had not furnished a proof of loss, as required in the policy, and had not pleaded or proved a waiver of such proof. While the pleading as to this branch of the case leaves much to be desired in the way of certainty, we think that, in the absence of a demurrer, it was sufficient to admit of proof. As to whether the testimony offered was sufficient to show a waiver, we are not called upon to express an opinion. The judgment is reversed and the case remanded to the court below, with directions to enter a judgment of [674] nonsuit as to the appealing defendants, and for such further disposition of the case as it may deem proper. Reversed and Remanded. Mr. Chiee Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur. Mr. Justice Eakin took no part in the consideration of this case.