Opinion
April Term, 1897.
Frederick A. Mann, for the appellant.
George H. Harris, for the respondent.
Two questions are pressed upon our consideration upon this review: First, whether there was evidence that should have been submitted to the jury as to whether the defendant, through its agent, at the time the policy of insurance was issued, had notice that the title to the property purchased upon the installment plan was not in the plaintiff or her husband; and, second, whether the defendant had waived formal proofs of loss and had accepted the statement of loss furnished by the insured as sufficient.
The learned counsel for the defendant admitted upon the argument as to the first question that notice to Poppin (the agent), if sufficient, was notice to the defendant, but he insists that the evidence was insufficient to create such a notice. From the record before us it does not appear that the specific point was made upon the trial, in the motion for a nonsuit, that the proof disclosed that the insured had not title to a portion of the property insured. The point made was that the plaintiff had failed to show facts sufficient to constitute a cause of action, and was too general to call the attention of the court to this specific point. ( Pratt v. D.H.M.F. Ins. Co., 130 N.Y. 220; Isham v. Davidson, 52 id. 237; Adams v. Greenwich Ins. Co., 70 id. 166.) Had the attention of the court been called to this matter an opportunity might have been given the plaintiff to give further proof upon the subject of notice, which would have been conclusive. But we are of opinion that sufficient evidence was given upon the subject of notice to have entitled the plaintiff to have the question of notice submitted to the jury. The agent was told, in effect, that a portion of the property had been purchased upon the installment plan by the wife, and had not been paid for. The jury might have found, under all the circumstances of the case, that this was sufficient, at least, to have required the agent to have sought further information upon the subject.
But the respondent insists that as this conversation was several months before the property was insured it cannot be regarded as notice of the condition existing at the time of the insurance. This information or notice was received by the agent in the course of negotiations that resulted in the contract of insurance, and it cannot be said, as a matter of law, that the lapse of time was sufficient to disconnect the notice from the insurance contract. The agency was continuous from the inception of the negotiation until its close. ( Cox v. Pearce, 112 N.Y. 637; Holden v. N.Y. Erie Bank, 72 id. 286; McNally v. P. Ins. Co., 137 id. 389; Robbins v. Springfield Fire Ins. Co., 149 id. 484; Forward v. The Continental Ins. Co., 142 id. 382.)
There was sufficient evidence to go to the jury upon the question whether the defendant had waived the service of formal proofs of loss. Proofs were submitted, which, though not containing the formal requisites of the policy, were such as were required by the defendant's agent, and were retained by the company, and acted upon by it without objection. The defendant investigated the loss through its agent, and apparently declined to pay the loss or any portion of it.
It is well settled that the service of proofs of loss may be waived by the insurer. ( Trippe v. P.F. Society, 140 N.Y. 28, and cases cited; McGuire v. Hartford Fire Ins. Co., 40 N Y Supp. 300; 7 App. Div. 575.)
The judgment should be reversed and a new trial ordered, with costs to abide event.
All concurred.
Judgment reversed and a new trial ordered, with costs to abide the event.