Johnson v. Hartford Fire Insurance , 157 N.Y.S. 893 ( 1916 )

Weeks, J.

The following facts are undisputed. The defendant herein issued its policy of insurance against loss or damage by fire to plaintiff’s property, situated at 120 Carlton street, this city. A fire occurred in the premises on April 4, 1915, and was confined to three rooms of a five-room flat. On April fifth the defendant was notified of the loss and on ■ April seventh an adjuster for the company called at the premises. He found a large quantity of the damaged property, consisting of bedclothing, table linen, wearing apparel etc., in piles upon the floor of the rooms and in such a manner that it was impossible for him to ascertain the damage. The adjuster told plaintiff’s wife, who alone was present at the time, to separate the damaged from the undamaged property, make an inventory of the same and send it to him and he would then call again and appraise the loss. He also told her she must keep the property until he did call again. The plaintiff filed an inventory of loss which consisted of over fifty items of property, many of them containing several articles of the same kind. The total loss was placed at $532.25. This inventory was received by the defendant on April fourteenth, and on April' fifteenth the adjuster called at plaintiff’s residence with the inventory to fix the loss. Of the fifty-two items mentioned in the proof of loss, he found but sixteen and a portion of another one. The remaining portion of the damaged property had been thrown away. The defendant having refused to pay under the policy, the plaintiff brought this action and has recovered a judgment for $300 damages, besides costs. The defendant pleaded as a complete defense that the contract of insurance had been broken, in that the insured had failed to exhibit to the defendant all the remains of the damaged property as required by the terms of the policy. The policy provides as follows: “ The insured, as often as required, shall exhibit to any person designated by the company, all that remains of any property described in the policy.” The policy also provided that in case of fire the insured should “ forthwith separate the damaged and undamaged personal property, put it in the best possible order and make a complete inventory.” In an attempt to evade the provisions above expressed or to excuse performance of the same the plaintiff claimed that his wife, to whom the adjuster gave the instructions regarding the damaged property, was unable to understand the English language; that the burnt goods • were nearly all destroyed, and that the plaintiff -kept them for ten days after the loss and then threw them out ‘ ‘ because they stank.” The evidence is not at all clear that plaintiff’s wife did not understand the English language sufficient to enable her to follow the instructions of the adjuster. She was examined through an interpreter, but she told the court that she understood English but could not talk it very well. The adjuster testified, without contradiction, that the wife fully understood him and that he made it very plain to her that she should keep the damaged property intact until he could examine it. Moreover, there is no requirement that the insurance company shall notify the policy-holder to preserve damaged.property. This is one of the provisions of the policy to be observed by the insured, and is a material part of the contract to be kept by him. It is immaterial, therefore, whether or not the plaintiff’s wife or the plaintiff himself was directed by the defendant’s employee to keep the property until examination was made for the purposes of appraisal. Neither was the plaintiff justified in completely destroying the damaged property under the circumstances.

But eleven days had elapsed between the date of the fire and the last visit of the adjuster, and the adjuster visited the plaintiff’s premises the very next day after the receipt of the proofs of loss. There is no similarity between the circumstances in the case of Flynn v. Hanover Fire Insurance Co., 67 Misc. Rep. 117, and those in the case at bar. In the Flynn case the firemen threw a large portion of the damaged goods, which were almost totally destroyed, into the yard of the building where they remained for three weeks, during which time persons connected with the insurance company called twice at the premises and subsequently the debris was removed by persons unknown. It also appeared in that case that the apartment of the insured had been entirely gutted, so that he was obliged to abandon it and move into a new one. These circumstances were held, by a divided court, to show a substantial compliance with the policy. We fully appreciate the hardship entailed upon the plaintiff by this decision, but the words of Mr. Justice Lehman, in the dissenting opinion in the Flynn case, are especially applicable to this; he said, “ If the plaintiff has, by his neglect, lost a right to be reimbursed for his goods, then his position is unfortunate ; but he himself agreed to the terms upon which the company was to reimburse him and I do not see how we can force the company to reimburse him on other terms.”

Judgment reversed, with thirty dollars costs, and complaint dismissed, with costs.

Lehman and Delehanty, JJ., concur.

Judgment reversed, with costs.