Bush v. . Westchester Fire Ins. Co.

63 N.Y. 531, 1876 N.Y. LEXIS 6

• Court: New York Court of Appeals
• Decided: January 18, 1876
• Status: Published

Opinion

Rapallo, J.

We think that the charge on the subject of the authority of Sly & Straight, and the effect of their acts, was erroneous. It was not proved that they had ever acted for the company in adjusting losses or waiving conditions before the occasion in question, nor that they were agents of the company for any other purpose than that of issuing and countersigning policies upon risks accepted by the company; yet, the judge who presided at the trial charged the jury, in substance, in reference to the omission of the plaintiff to furnish proofs of loss, as required by the policy, that, so far as Sly & Straight assumed to act for the defendant (the company) in waiving such proofs, the plaintiff had a right to infer that they had authority to act. That if Sly & Straight, either of them, said it was all right and the loss would be paid, of course, that would be a waiver on the part of the defendant of any thing else to be done by the plaintiff. In various forms, during the progress of the trial, the judge held that whatever Sly & Straight did in respect to the loss, the plaintiff had a right to infer they had authority to do. In one part of the charge, the judge expressly stated, in presence of the jury, that the plaintiff had the right to infer that Sly & Straight had such authority as they assumed to exercise. Their own acts were thus made the evidence of their authority, without bringing home to the defendant any recognition, or even knowledge, of such acts, or showing any previous authority for them.

The case was evidently tried upon the theory that Sly & Straight having been shown to be agents for the purpose of countersigning and delivering the policy, whatever they said or did after the loss was binding upon the defendant, unless notice was given to the plaintiff that they had not authority to do such acts, or make such declarations, and this proposition was, in substance, enunciated by the judge. The objections and exceptions to these rulings appear in various forms throughout the ease. It cannot be held that the authority of an agent to receive proposals for insurance, and countersign and deliver policies, extends to adjusting losses or waiving the stipulated proofs of loss, and binding the company to pay without them. Neither can it be held that the mere fact that such an agent assuming in a particular case to do those acts establishes his authority. The error committed in these respects is so obvious as to render it unnecessary to refer to the other exceptions in the case.

The judgment must be reversed and a new trial ordered, with costs to abide the event.

All concur; Miller, J., not sitting.

Judgment reversed.