Jaeckel v. American Credit Indemnity Co. , 54 N.Y.S. 505 ( 1898 )

O’BRIEN, J.

This appeal is brought upon disputed construction and interpretation of the conditions of the policy, and not upon disputed facts. The first construction called for is as to condition 4 of the policy, which states:

“Proof of loss must be made * * * within twenty days after knowledge of the insolvency of any debtor shall have been received by the indemnified; * * * otherwise such claim shall be barred.”

The appellant holds that, as such notice was not given of the failure of Lally & Collins, the loss thereby incurred should be excluded from consideration in the settlement of liability. The respondent, although admitting the force of this contention, insists that this particular loss should not be included under this condition because of another condition in the policy. The other condition referred to is that the first losses, up to a certain sum, should be borne by the indemnified, before any claim could be made against the company. The respondent’s position, allowed by the referee, is, therefore, that the loss by failure of Lally & Collins, being a first loss, and. less in amount than the initial loss agreed to be borne by the indemnified, was not a “claim” against the company, nor a “loss” for which the company was liable, and therefore is not included under condition 4, requiring notice of loss to be sent within 20 days. We are unable to agree with this holding of the referee, for the reason that, as this loss had to be taken into consideration in the final settlement, the company was entitled by its agreement to learn of it, as well as of all other losses, within the time stipulated. Such seems to be the fair and reasonable construction, and the one in accord with the spirit of the agreement; otherwise, the company could not insist upon knowledge of the failures making up the initial loss to be borne by the indemnifled, excepting as they -were subsequently proved as facts on the final: settlement. This construction would shut off the company from proper and timely inquiry into the failures and losses presented, and' would open the door to fraud on the part of the indemnified. There is nothing, moreover, in the language quoted from condition 4, or in any other part of the policy, excluding from the time limitation losses- or claims going to make up the initial loss. We think, therefore, that the company was entitled to receive the stipulated notice of the' loss by the failure of Lally & Collins, as of all other losses, and it follows that, if such notice was not given, this claim should be excluded in the settlement of the defendant’s liability.

A second question of construction is presented by the contention of the appellant that the payment of Abel & Sons of $373.03, made September 12th, should be deducted from its liability, because of condition 12c of the policy, which states:

“Final proof of loss shall be forwarded to the central office of this company. <= e * and the amount due by this company under final proof of loss shall be adjusted and paid within sixty days after receipt by the company of such final proof of loss.”

The defendant contends that, the final proof of loss being sent July 31st, and 60 days thereafter being allowed to adjust the same, a-payment made September 12th, before such adjustment, should be-deducted. This contention cannot, be sustained, for, as stated by the referee, the claim against the company had accrued, and we must hold that the 60 days for adjustment was given, as indicated by the company’s letter of August 2d, to give time “to investigate claims” filed, and not to give time for further payments to be made, and thus better the condition of the company. If, as the defendant claims, this payment should be deducted from the liability, the company could have-demanded 60 days after final proof of its payment was accepted, and. in this way delay final settlement. It was, moreover, provided by condition 8 in the policy that “no loss can be proven after expiration of this bond,” and the defendant may not, on the one hand, receive-benefit from subsequent payments, and, on the other, suffer no increase of liability for losses during the period granted for adjustment. We must hold, therefore, that the referee was right in not deducting this payment.

The most serious question of construction arises on this appeal as to the agreement made regarding the exact amount of initial loss to be borne by the indemnified; the appellant contending that it should be greater than the $3,750 admitted by the referee. Subsidiary to this determination, and depending upon it, is the question of what understanding existed regarding salvage in the insolvent claims. It is stated in the policy that $3,750 is the initial loss to be borne by "the indemnified, and, by a further condition, that claims going to make up such loss shall belong to the indemnified. This latter condition is 12b, which states:

“When claims shall be allowed by this company beyond the amount agreed to be borne by the indemnified, such claims shall at once be transferred to this company, and this company shall become the owner thereof to the extent of the amount paid on such claims: provided, however, that where the in■demnified has a part interest in any one of such claims the amounts realized therefrom, less cost of collection, shall he divided pro rata, as the interest ■ of each may appear.”

The defendant, however, alleged that there was an agreement —namely, condition 12a of the policy—by which the company relinquished its right to salvage in claims on condition that the initial loss to be borne by the indemnified should be $5,000, instead of $3,-750. This condition was discarded by the referee as obscure and unintelligible, and the case of Indemnity Co. v. Wood, 19 C. C. A. 264, 73 Fed. 81, was cited in support of his ruling. The condition discarded by the referee and brought before us on this appeal states:

“To simplify adjustment, and to avoid disputes, it is agreed that such .sum of gross loss shall be the limit to be borne by the indemnified, as less 25' per cent, will equal the agreed amount of annual net loss; all claims making up such said sum of gross loss to remain the property of the indemnified, the ■ company relinquishing its claims, except as hereinbefore provided.”

If this condition (12a) be disregarded, then the referee is right in giving the plaintiff salvage in claims making up the initial loss in accordance with condition 12b. It is admitted that condition 12a is framed in obscure language, but it is claimed to be an agreement that the claims shall be retained by the indemnified, the company relinquishing the title thereto on condition that a certain limit of loss, different from that previously stated in the policy, shall be borne by the indemnified. The manner by which this limit is to be calculated is scarcely to be understood from the words, “such sum of gross loss shall be the limit to be borne by the indemnified as, less 25 per cent., will equal the agreed amount of annual net loss,” ■and, prima facie, the language is not intelligible. The only aid given to its construction is to be found in the “agreed statement of facts” in the record, where it is stated, “It is agreed that, mathematically considered, $5,000 is the 'sum of gross loss’ mentioned in condition 12a 'as less 25 per cent, will equal the agreed amount of annual net loss.’ ” If we substitute in condition 12a as here indicated, it will read, “It is agreed that $5,000 shall be the limit to be borne by the indemnified as, less 25 per cent., will equal the agreed amount of annual net loss; all claims making up such said $5,000 to remain the property of the indemnified.” This substitution does not clear the condition of ambiguity. In the condition, the words “sum of gross loss” seem to be used first in the sense of limit to be borne by the indemnified, and, secondly, in the sense of total loss. We are unable to determine whether the condition was intended to give salvage to the plaintiff on all claims, or only on a part of them. We cannot assume that, in consideration of having salvage in claims amounting only to $5,000, the indemnified intended to increase his initial loss to that sum, as the supplemented condition would indicate, nor, on the other hand, can we say that the sum of total loss is agreed to be $5,000; for the determination of total loss is in issue on this appeal. We therefore hold that the condition is not sufficiently certain to be applied, and should be disregarded. The company, being charged with the duty, should make the conditions reasonably .certain and clear, and it would be unjust and inequitable to permit it to receive the most favorable construction of a blind and obscure condition.

This view is clearly expressed in the case of Indemnity Co. v. Wood, 19 C. C. A. 264, 73 Fed., at page 88, where the learned judge, referring to this condition 12a, says:

“If, by the introduction of a subsequent and obscure clause, difficult to understand, or requiring expert knowledge for its comprehension, the preceding clauses, plainly and unequivocally expressed, by which the initial loss of the indemnified is fixed, are nullified, the subsequent clause must be ignored. It cannot be permitted to operate as a snare to the unwary.”

In the present case there was a clear understanding of an initial liability of $3,750; and the condition 12a is not clear, even with the. substitution of “$5,000” for the words “sum of gross loss.” There remains an uncertainty as to the real intent and meaning of the condition, and it cannot, therefore, be permitted to operate to change the clearly stated initial loss to the injury of the indemnified. If, in fact, we adopt the defendant’s interpretation of this condition, it only grants the indemnified an option to increase his initial liability. But no facts are made to appear which show that the plaintiff chose to exercise such an option, and therefore the defendant has no ground for contending that the condition should be taken into consideration. The referee was, therefore, right in following the terins of condition 12b in disposing of payments made by creditors subsequent to their failure, and after the expiration of the policy.

It follows from the construction thus given to the several conditions of the policy that the judgment confirming the referee’s report should be modified by striking out the claim of Lally & Collins, amounting to $995.38, leaving $900.61, with interest from October 1, 1894, and costs in the court below, due from the defendant. As so modified, the judgment should be affirmed, without costs of this appeal. All concur, except INGBAHAM and MCLAUGHLIN, JJ., dissenting.