Walsh v. Hartford Fire Insurance , 16 N.Y. Sup. Ct. 421 ( 1876 )

Mullin, P. J.:

The defendant insured the plaintiff’s dwelling-house at Carthage, in Jefferson county, for the term of three years, from the 27th of November, 1871, for the sum of $1,500 ; the policy was renewed on the 27th of November, 1874, for three years longer.

The policy contained the following condition amongst others, viz.: “ If the premises hereby insured shall become vacated by the removal of the owner or occupant, and so remain for a period of more than fifteen days without notice to the company and consent indorsed hereon, then the policy to be void. It is further expressly covenanted by the parties hereto that no officer, agent or representative of this company shall be held to have waived any of the terms or conditions of this policy, unless such waiver shall be indorsed hereon in writing.” There is in the policy this clause also : “This policy is made and accepted upon the above express condition.”

The house was occupied by one Neafy ; he moved out of it on the 3d of June, 1875. The defendant’s agent at Carthage was informed by plaintiff’s son, by direction of his father, that the house was vacant, and he requested the agent to consent that it might remain vacant, and he said he would. He was asked if it was necessary to get the policy,' so as to have the consent indorsed upon it; the agent replied that it was not, that he had entered it on the book furnished him by the company, and it was all right, and he might go about his business; the consent was entered on the book so kept by the agent.

Carpenter was the general agent of the defendant at Carthage, to whom blank policies were sent; he countersigned and delivered them, collected premiums, and consented to transfers and assignments of policies.

Tbe building was burned on tbe 23d of July, 1875. A recovery on tbe policy was resisted on tbe ground that tbe building having been vacated and remained vacant for more tban fifteen days, without tbe consent of tbe company that it might remain vacant being indorsed on tbe policy, tbe policy was void. A non-suit was moved for on this ground, and it was granted, and from that judgment tbe plaintiff appeals.

A general agent of an insurance company may waive tbe performance by the insured of conditions in the policy, and.bind tbe company by such waiver. (May on Insurance, 126; Wood v. Poughkeepsie Ins. Co., 32 N. Y., 619; Carroll v. Charter Oak Ins. Co., 38 Barb., 402; Bodine v. Exchange Fire Ins. Co., 51 N. Y., 117; Parker v. Austin Fire Ins. Co., 1 N. Y. S. C. [T. & C.] 397; S. C., 59 N. Y., 1.)

A general agent of an insurance company is one who is authorized to accept risks, to agree upon and settle terms' of insurance, and to carry them into effect by issuing and renewing policies. (May on Insurance, 126, 145-155; Post v. Ætna Ins. Co., 43 Barb., 351.)

Tbe complaint alleges and tbe answer admits that Carpenter was a general agent at Carthage, and as such, empowered to solicit risks, issue, countersign policies and collect premiums, but tbe answer denies that as such agent be was authorized to waive or to consent to a waiver of any condition or stipulation contained in a policy.

This denial is of no avail; by admitting Carpenter to be a general agent, and as such authorized to perform tbe acts specified in tbe complaint, he was authorized to waive • conditions in policies. His verbal consent that tbe premises might remain vacant was a waiver of tbe conditions that the consent should be in writing, indorsed on tbe policy. Such seems to be tbe result of several decisions; whether it is right, it is not for this court to inquire. (Newton v. Allemania Fire Ins. Co., N. Y. Weekly Dig., No. 25, July 31, 1876, p. 600; Thayer v. Agricultural Ins. Co., 5 Hun, 566; Askell v. Commercial Ins. Co., 7 Hun, 455; Hotchkiss v. Germania Ins. Co., 5 Hun, 90-100.)

Tbe defendant’s agent having been applied to for bis consent that tbe bouse might remain vacant, and that be would indorse such consent on tbe policy, and tbe agent saying that bis consent written in bis book would answer just as well, was a waiver of the condition that the consent should be indorsed on the policy, if entering the consent in his book should not be held to be equivalent to an indorsement on the policy.

The judgment must be reversed and a new trial granted, costs to abide event.

Present — Mullin, P. J., Smith andTAiooxT, JJ.

Judgment reversed and new trial granted, costs to abide event.