Hill v. Hibernia Insurance

17 N.Y. Sup. Ct. 26

• Court: New York Supreme Court
• Decided: February 15, 1877
• Status: Published

Opinion

Barnard, P. J.:

The defendant issued to the plaintiff a policy of insurance on the 5th of January, 18Y4, to expire 'in one year. The' subject of the insurance was “ the two story frame dwelling, composition roof, standing detached on the west side of Bennett avenue, about 125 feet north of Duryea avenue, east New York, Long Island.”

The house was entirely destroyed on the lJth of June, 1814. At the time of the insurance this house was unoccupied, and so continued until the fire. The house stood about seven feet from another house. Upon the trial the defendant offered to show that the words “ standing detached” in a policy meant, “ amongst insurance men generally,” that the subject of the insurance should be at least twenty-five feet from external exposure. This offer was rejected, and the plaintiff had a verdict. The defendant makes two principal objections to the recovery:

First. That the word “ dwelling” in the policy imports a. warranty that the building was then occupied as a dwelling, and being broken, the policy was void.

Second. That it was error to exclude the evidence as to the special meaning of the words “ standing detached.”

The first objection under the evidence seems untenable, and hardly consistent with good faith. There was an application in writing for the policy. This application is in the defendant’s possession, and is not produced. Plaintiff’s agent, Bond, testifies that defendant’s agent, Carroll, wrote down the application, and that he, Bond, told bim that it, the house, was then unoccupied. H the policy had mentioned this paper, it would have been a part of the policy by its express terms. As it is, if the policy is made out different from the application, the policy should conform to it. Carroll, defendant’s agent, does not deny that there was a written application, but says that Bond left it —importing that Bond drew it. No matter who drew it, the evidence is conclusive, that the written paper contains a statement that the house was unoccupied. Bond says Carroll drew it from what he stated, and that the fact of the house being unoccupied was a part of it. Carroll says, I don’t remember Bond telling me so, but “ he left a written memorandum of what he wanted.” In filling out the-policy, Carroll was defendant’s agent, and his error in filling out the policy should not destroy the policy. (Rowley v. The Empire Insurance Company, 36 N. Y., 550.)

As to the second objection taken by defendants, there are two reasons why it should not prevail.

First. There is no ambiguity in the words “ standing detached.”

Second. There is no offer to prove that the particular meaning claimed for the words was known to the assured. "When the usuage is as to a particular trade or profession, a party to be bound by it “must be shown to have knowledge or notice of its existence.” ( Walls v. Baily, 49 N. Y., 464.)

I think the judgment should be affirmed, with costs.

Gilbert, J., concurred. Dykman, J., not sitting.

Gilbert, J.:

. The defense in this case seems to be entirely destitute of merit. The company received a verbal notice of the loss immediately after the fire, and nine days after the fire proofs of loss were served, which also contained a formal written notice of the loss. All these were received and retained without objection, and the company put its refusal to pay the loss upon other grounds than a non-compliance with the conditions of the policy in relation to these matters. Such conduct is a waiver of the strict performance of such conditions.

The building insured is described in the policy as a dwelling as and “ stcmdmg detachedI.” This is the language of the insurer. No survey or statement, showing whether the building was occupied or not, or tbe distance between it and adjacent buildings was required of tbe assured or furnished by him. Tbe insurance was effected through a broker, who had been engaged in that business twenty year’s. Tie testified that he informed the insurer before he effected the insurance that the building was vacant, and that he was willing to pay an extra premium on that account.

We think that the use of the word “ dwelling ” does not imply that the building is occupied, but if it does, the use of it by the insurer alone does not create a warranty by the assured. The question whether the fact that the building was vacant, was fraudulently suppressed by the assured, was fairly submitted to the jury, and their conclusion upon it is fully supported* by the evidence. The defendants having knowingly insured a vacant building, the condition, that if the building should afterwards become vacant, or unoccupied, without their assent indorsed on the policy, affords them no shield. That condition by its terms applies only to an insurance upon an occupied building, which is vacated after the insurance was effected.

The building did stand detached. It was seven feet from any other building. The attempt to show that the phrase “ standing detached ” meant that it was distant twenty-five feet, or thereabouts, from any other building, was properly rejected. The phrase is not in the slightest degree ambiguous, and extrinsic proof was not admissible to give it a meaning different. from its plain import. A new contract cannot be made in that way. (Reynolds v. Commerce Insurance Company, 47 N. Y., 605.)

We have discovered no error in the rulings upon the trial, or in the charge to the jury.

The judgment must be affirmed.

BaeNAKd, P. J., concurred. DyKMAN, J., not sitting.

Judgment and order denying new trial affirmed, with costs.