Enfantino v. United States Fire Insurance

THE COURT.

An appeal by defendants United States Fire Insurance Company and North River Insurance Company from a judgment in favor of plaintiff in the sum of #1500.

The complaint alleged that on or about August 25, 1925, in consideration of a premium of $45, defendants issued a policy of insurance upon certain alfalfa hay owned- by plaintiff for a term of six months; that during the policy period, to wit, on January 1, 1926, the hay was totally destroyed by fire. It was further alleged that defendants waived the provisions of the policy requiring notice and proof of loss, and that plaintiff had otherwise kept and performed all the provisions of the policy.

[731]

Defendants alleged that before the fire the policy was indorsed and modified so as to shorten the term from six to four months; that consequently the policy expired before the fire occurred; further, that plaintiff failed to comply with the requirement that a written proof of loss be filed within sixty days from the date of the fire.

The cause was tried by the court, which found that plaintiff had performed all the conditions and provisions of the policy by him to be performed, and that defendants waived all conditions precedent therein to be performed by him; also that defendants within sixty days after the loss denied liability under the policy and induced plaintiff to believe that a proof of loss need not be filed; further that the policy was never altered or amended so as to shorten the term to a date before the fire occurred and no indorsement so changing the term was ever delivered to plaintiff.

With regard to defendants claim that an indorsement shortening the term, to be attached to the policy, was delivered to the plaintiff, the evidence sufficiently supports the finding that there was no actual delivery to the plaintiff, but to one Broadhurst, who, defendants contend, was plaintiff’s agent.

It has been held that where an insurance agent requests insurance from a company whom he does not represent he is acting for the insured.

(Solomon

v.

Federal Ins. Co.,