
    HILL v. LONDON ASSURANCE CORPORATION.
    
      N. Y. City Court, Trial term;
    
    
      December, 1890.
    1. Insurance ; forfeiture of policy ; waiver by agent l] Where a fire insurance policy provides that no agent of the company shall have power to waive any of its provisions except such as may be indorsed thereon, or added thereto, an oral waiver by an agent of a forfeiture by removal of the property insured, without indorsement thereof on the policy is ineffectual.
    2. The same ; case stated'.\ Hence, where the policy required the fact of the removal of the property insured to be indorsed thereon, and entered in the company’s books,—held, that such requirement was reasonable, and that the forfeiture of the policy for noncompliance therewith was not waived by the acts of the company’s agent, who was notified of the removal, received the policy for indorsement, but returned it subsequently unindorsed, saying that the necessary formalities had been complied with.
    3. Amendment of complaint at triall\ A complaint on a written policy of insurance against fire cannot be amended at the trial SO' as to allege a cause of action upon an independent parol contract of insurance subsequent to the issue of the policy.
    Trial by the court without a jury.
    Stephen Hill sued the London Assurance Corporation upon a policy of fire insurance issued by defendant covering household furniture and other articles of personal property of the plaintiff “ while contained in the frame dwelling, situated, detached, at Bay Side, Long Island.” The policy was issued through the defendant’s general agent for the city of Brooklyn and vicinity, one Whitney. The policy contained the following clause: “ This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”
    Evidence was introduced for the plaintiff tending to show that on or about August gth, 1887, he took the policy to the agent, Whitney, told him he was about to remove the property to another house, and requested him to procure the company’s assent to such removal; that Whitney took the policy, and afterwards returned it to plaintiff, stating that all the necessary formalities had been complied with, and that the policy would cover the property in the new location. No indorsement of consent to removal, or any other writing was ever made on the policy.
    During August and September, 1887, plaintiff removed the property to his new residence in Bay Side, whereit remained until January 31st, when it was destroyed by fire.
    This is a second trial of the action. Upon the former trial, plaintiff recovered judgment upon a verdict of the jury, but upon appeal, the general term of the court of common pleas of the city and county of New York, reversed the judgment, holding that under the terms of the policy the agent had no power to bind the company by a waiver of the forfeiture of the policy by the removal of the property insured without the necessary indorsement on the policy.
    
    
      Upon the present trial, the evidence was substantially the same as on the former trial with the slight additional evidence referred to in the opinion.
    
      Isaac Wyman, for the plaintiff.
    
      John Notman (Butler, Stillman & Hubbard, attorneys), for the defendant.
    
      
       Reported in 30 State Rep. 539.
    
   McAdam, C. J.

The plaintiff has made no different case from the one tried before. The only additional fact proved is that the plaintiff saw the authority of Mr. Whitney (the local agent) and read it; and had no other knowledge of his powers than those stated in the certificate, and no knowledge of any limitation thereon; that the company retained the unearned premium on the policy, and that such premium was paid in cash.

This slight additional proof in nowise changed the rights or liabilities of the parties. It was conceded on the former trial that the premium had been paid, and that the unearned premium had not been returned as the policy had not been cancelled and surrendered. The policy gave express notice of the limitation of the agents’ authority in these words: “No officer or agent of the company shall have power to waive any of its provisions .... except such as may be endorsed thereon or added thereto.” The plaintiff is of course deemed to know his own contract and to be familiar with its terms. The action is on the contract, and if it furnishes no cause of action, the plaintiff has none. It is easy to conceive how an individual may orally or by acts waive any provision of a contract inserted for his own benefit, but it is difficult to understand how an agent can waive a limitation on his powers imposed by his principal, for the latter’s protection, particularly where knowledge of the limitation is brought home to the person asserting the waiver, and who seeks to' benefit by it (Walsh v. Hartford Fire Ins. Co., 73 N. Y. 5). Suing on the policy containing the limitation is conclusive evidence that the party prosecuting knew of it and contracted with reference to it.

The general term of the Common Pleas, held that on the proofs given at the former trial, the complaint ought to have been dismissed (Hill v. London Assurance Corporation, 30 State Rep. 539). The reasons given by the general term apply with as much force to the case made now as to the case made then, and all this court has to do is to follow the advice of its appellate tribunal.

In contracts for fire insurance the most important consideration is the location of the place where the' goods to be insured are contained, the size and general character of the structure and its surroundings, whether of iron, stone, brick or wood, whether detached from, connected with, or in the proximity of danger from fire. These considerations enable the company to decide whether to accept or reject the risk and if it be accepted to determine the rate of premium to be charged. A survey or examination is generally made, and these things noted for entry on the surveyor’s books. It is common experience that the result of these inquiries is the basis upon which every insurance company enters or declines to enter into the contract of indemnity. The property covered by the policy in the present case was removed from the house in which it was insured to a dwelling on an adjoining farm.

Whether the risk of fire was increased or diminished by the removal does not appear, except by the circumstances that the house to which the removal was made burned down, and the other did not. According to the plaintiff’s theory the insurance company never inquired or cared whether or not the risk was enhanced by the removal. This conclusion is too improbable to be adopted. The policy was in writing and specified everything with great particularity. The removal and its consequences "were matters of as serious import as the written contract first deliberately made and entered into. It was certainly a piece of gross carelessness on the part of the insured, not to have the fact of removal indorsed on the policy and entered on the company’s books rather than trust to the unusual method of loose conversation and slippery memory.

Such important changes as a rule are both indorsed and entered. Carpenter’s risks, transfers of interest, losses payable to mortgages, constantly receive this attention; it is common knowledge.

The plaintiff disregarded these requirements, and cannot complain if the insurance company insists upon the observance of the conditions of insurance which require those insured to observe such regulations. It was certainly a reasonable condition, to require that so important a change as the removal of the property to a building upon an adjoining farm be made matter of record and part of its contract. Any other system would not be commended, but rebuked. The home office would have to depend on the memory of its local agents rather than their books or even their policies.

The plaintiff has asked leave to amend by declaring upon “ a new and independent parol contract of insurance.” The proofs fail to show any such contract. The action is on the written policy, and the only claim made is that there was a substitution of buildings by oral consent, without fixing the new rate of premium or paying or even promising to pay anything as a consequence of the change.

Such a radical amendment even if warranted by the proofs could not be made at the trial. It would be to ■drop this contract sued upon, by substituting a new, distinct and independent contract” (Ford v. Ford, 53 Barb. 525 ; and see cases collated in 1 Bliss Code. 612, note m)

It follows that the motion to amend must be denied, and the complaint dismissed with costs.  