Lowry v. Lancashire Insurance , 39 N.Y. Sup. Ct. 329 ( 1884 )

HaRdiN, J.:

"Whether the agent waived the service of formal proofs of loss upon the company or not, was a question of fact which should have been submitted to the jury. (Underwood v. The F. J. S. Ins. Co., 57 N. Y., 500; Goodwin v. Mass. Mut. Life Ins. Co., 73 id., 480, 494; Wood on Ins., §§ 416, 417.) There was evidence from which the jury might have found that McCurdy was a .general agent of the company, clothed with power to settle the loss, and to accept such proofs of loss as were presented to him in the investigation made when he held the negotiations with the assured. (Titus v. Glens Falls Ins. Co., 81 N. Y., 411.) The restriction in the sixth clause of the policyj was like the restriction found in the policy in Steen v. The Niagara Insurance Company (89 N. Y., 326). In respect to that DaNfoeth, J., says: In that case a waiver might be made by the company “ by oral consent as well as by writing, and the general agent, unless specially restricted, could do the same.”

It has been held, in cases where the policies contained more sti’ingent limitations of the power of agents in respect to waiver of conditions than the one before us, that after loss has happened conditions in the policy, with respect to preliminary proofs, may be waived by parol, though the policy contain a stipulation that no waiver shall take place except in writing, signed by the president or secretary of the company. (Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md., 102 [11 Am., 469]; Blake v. Exchange Ins. Co., 12 Cray, 265; Priest v. Citizens' Ins. Co., 3 Allen, 602.)

In Franklin Fire Insurance Company v. Chicago Insurance Company (supra), the Court of Appeals, of Maryland, in considering language like that framed in the policy before us, said: We are satisfied that it has no reference to the requirements with regard to the preliminary proofs of loss found in the condition of the policy; and that it was not contemplated with respect to them, that no defect or omission could be waived by the company without a written agreement to that effect indorsed upon the policy. (11 Am., 477.) Because there was evidence which would have warranted the jury in finding that McCurdy had authority to waive the presentment of formal proofs of loss, and that he intended to waive and did so waive proofs of loss, and thereby induced the assured to omit to make and serve more formal proofs than such as McCurdy did obtain from him, we think the learned trial judge was in error when he granted a nonsuit, and refused to submit the case to the jury. (Marvin v. The Universal Life Ins. Co., 85 N. Y., 283; Whited v. The G. Ins. Co., 13 Hun, 191; Marcus v. St. Louis M. L. Ins. Co., 68 N. Y., 625.)

Judgment reversed, and a new trial ordered, with costs to abide the event.

Smith, P. J., and Babker, J., concurred.

So ordered.