Mellen v. . the Hamilton Fire Insurance Company , 17 N.Y. 609 ( 1858 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The objections taken on the trial to the sufficiency of the preliminary proofs, and to the right of the plaintiff to maintain the action in his own name, were very properly abandoned on the argument before us. Where an action is brought by a trustee, in whom the legal title is vested, it is certainly not necessary that the cestuis que trust should be made parties, either as plaintiffs or defendants, unless where the action is brought for the purpose of determining, or involves the determination of, their respective rights and interests under the instrument creating the trust.

The objection that the assignment to the plaintiff was made without that consent in writing of the defendants which the policy requires, although not abandoned upon the argument, is, in our opinion, quite as untenable as those that have been mentioned.

The restrictive clause in the policy, upon which the objection is founded, refers only to an assignment of the policy during the pendency of the risks and accompanying the transfer of an interest in the property insured, and, thus interpreted, there are evident reasons for its introduction; but where the assignment is made, as in the case before us, when the risks have ended, and for the sole purpose of enabling the assignee to recover a loss, it is in reality no more than an assignment of a debt, which, as the company has no motive of interest for preventing, it would be unreasonable to suppose was meant to be prohibited. This limited interpretation of the clause was adopted by this court many years since, in the case of Brichta v. TheLafayette Insurance Company; and as we see no reason to doubt the propriety of the decision, and are not aware that it has ever been departed from, we hold ourselves bound to follow it. (2Hall S.C., 372; Lazarus v. Commonwealth Insurance Company, 5 Pick., 79; 2 Duer on Ins., 64, 65, 66.)

The plaintiff would be entitled to judgment, were there no other objection to his recovery; but an objection remains to be stated, to which no answer, that we can deem satisfactory, has been given, and, unrefuted, it is fatal.

It is insisted that, before the happening of the loss, the insurance had been rendered void by the violation, on the part of the assured, of that provision in the policy which made it his duty to give notice to the company, with all reasonable diligence, of any further insurance that might be effected by him, and to have the same indorsed on the policy, or otherwise acknowledged by the company in writing. A further insurance was effected by him on the 23d of June, 1854, and no other notice of the fact was given to the company than that contained in the preliminary proofs upon which payment of the loss was demanded, and these, the case shows, were not made up and served until the 26th July following. The delay, it is contended, was unreasonable, and has not been justified or excused.

On the part of the plaintiff, two replies have been made to the objection: First. That the witness, Kane, was the general agent of the defendant, and that, as the subsequent insurance was procured by him, his knowledge of the fact was equivalent to notice to the company, and several adjudged cases were referred to as sustaining this position; Second. That there was no want of reasonable diligence, even on the supposition that no other notice was given to the company than by the service of the preliminary proofs. Neither reply can we hold to be sufficient. The allegation that Kane was the general agent of the defendants, to whom a notice, binding on the company, of a subsequent insurance, could properly be given, is not only not sustained, but in our opinion is plainly contradicted by the evidence. He was an insurance broker; and from the nature of his business, as such, was no more the general agent of the defendants than of any other company or individual to whom his professional services had been rendered. In procuring the insurance, he was the agent of the assured, and if, before the transaction was complete, he became for any purpose the agent of the defendants, that agency wholly ceased when he had delivered the policy to the assured and had paid over to the company the premium which he had received. From this time, there was no such relation between him and the defendants as could make it his duty to communicate to the company his personal knowledge of a subsequent insurance, or could justify third persons in believing that this duty was imposed on and would be discharged by him. We think it would be extravagant to say that the knowledge which, in a separate transaction, he acquired of a further insurance, was alone sufficient to affect the company with notice of the fact. The cases, therefore, to which we were referred, bear no analogy to the present; and it is needless to consider whether we should have held them to have been applicable or controlling, had the general agency of Kane, or the fact that he was held forth to the public by the defendants as such agent, been established on the trial. The question whether, had such express and timely notice of the subsequent insurance been given to the defendants, they might not, by refusing to indorse it on the policy, or otherwise to acknowledge it in writing, have discharged themselves from all further liability, we shall also leave undecided.

The sole question that remains is, whether there was such a want of reasonable diligence on the part of the assured, in giving the notice which the policy requires, as rendered the insurance void at the time of the fire; for if it was then in force, the defendants are certainly liable, and the notice given by the preliminary proofs may well be deemed sufficient. As the facts are undisputed, this question was treated by the counsel, and is regarded by us, as purely a question of law, and its proper determination, as such, it seems to us, is not at all difficult or doubtful. If the only purpose for which notice of a subsequent insurance is required were that of enabling the prior insurers to ascertain for what proportion of a loss they might eventually be liable, no such notice would seem to be necessary until the actual occurrence of a loss, since, if given then, it would fully answer the purpose for which alone it was intended, and a delay working no prejudice to the insurers could not justly be qualified as unreasonable. But this is not the only, nor, as we apprehend, the principal reason for requiring that express notice of every further insurance upon the same property shall be given. By one of the conditions annexed to the policy, the company may elect, at any time and for any cause, to terminate the insurance, by giving notice to the assured and returning a due proportion of the premium; and to enable an insurance company to exercise properly this discretionary power, it is important that it should have a timely knowledge of the facts, upon which its exercise will usually depend. Of these facts there is probably none more important to be known than that of the total amount of the sums insured upon the same property; since it is by a comparison of this amount with the value of the property that prudent insurers, in making the election which the policy gives to them, are certain to be governed. Hence it is that the fact of a further insurance is required to be made known to them with "all reasonable diligence," instead of deferring the communication until the happening of a loss. We think, therefore, that the words "reasonable diligence,' looking to the purpose for which they are inserted, demand promptitude of action and exclude unnecessary delay, and consequently that an unexplained delay of nineteen days is conclusive proof of a want of that reasonable diligence which was necessary to be shown to continue the policy in force. We think that it was not in force when the fire happened, and that the loss claimed is therefore not recoverable.