Gates v. Penn Fire Insurance ( 1877 )

Mullen, P. J".:

By the evidence in this case it appears that a short time prior to the 16th June, 1874, Yolney "Warren applied to R. R. Browne, an insurance agent residing and doing business at Carthage, in Jefferson county, to insure his livery stable, bam and dwelling-house, situate in the village of Carthage aforesaid.

Browne could not take the risk, and wrote E. J. Clark, defendant’s agent, at "Watertown, in said county, requesting him to take it. Clark went to Carthage, and on the morning of the 16th June met said Warren and told him he and Levi, an agent of said Clark, were round trying to get some policies and wanted to know if he (Warren) would like one. The rate that Clark would charge was then talked over. Clark asked him how his property stood, and W. told him he owned every thing free and clear, with the exception of $400 due on the contract, and that Warren, the vendor of the land owed him (W.) enough, if he paid it up, to have it all free and clear. W. further told C. that he had erected the buildings, and their cost.

It was also proved that Clark returned to Watertown, filled out the policy and sent it to Levi, who delivered it to Warren.

Warren had no knowledge of the contents or conditions of the policy when the conversation at Carthage was had with Clark.

The policy speaks of an application of the assured, as forming a part of it, and as being a warranty on the part of the assured, but no application was produced or proved on the trial.

• We must assume the fact tobe that no application was made by the assured except a verbal one, and that the defendant’s agent inserted in the policy a description of the property without the knowledge of the assured, and without stating therein the nature of the title or interest of the assured in the property communicated to him by Warren.

The assured, at the time he made the application to Clark to insure his property, had no knowledge of the provisions of the policy, and could not know that by it, Clark, in taking the application, was to be deemed his agent and not the agent of the company. He had the right to treat Clark as the agent of the company, and possessing the power to agree upon the amount of premium to be paid to fill up the policy and to deliver it to him as an operative instrument.

It was Clark’s duty to insert in the policy the nature of Warren’s interest in the property, as it had been disclosed to him, and failing to do it the defendant is estopped from objecting to the validity of the policy by reason of such omission. (Baker v. The Home Life Ins. Co., not reported, opinion by Allen, J.; Insurance Co. v. Wilkinson, 13 Wall., 222.)

But it is said that, by the terms of the policy, Clark was the agent of Warren, and not of the defendant. He would have been so bad Warren known that the policy contained such a provision, but he did not.

He treated Clark, in the proceedings to effect an insurance, as the agent of the company, and gave him all the information necessary to enable him to propose a valid policy. Clark, if he had ever read the policy issued to a person insured by defendant, knew that he was not the agent of the defendant, but was the agent of the insured. The company, therefore, and not the insured, should bear the consequences of the blunder of the agent.

The conditions of the policy, as to the insertion therein of the notice of insured’s interest in the property, if less than a fee, was never in force as between Warren and the defendant. It was never known or assented to by him. (Rowley v. The Empire Ins. Co., 36 N. Y., 550.) The judgment must be affirmed.

Present —Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed.