ment defeats any right of subrogation which otherwise the insurers might have.1 If the bill of lading provides that a common carrier on incurring liability shall have the benefit of the insurance on the goods, the insurer will have no right of suit by way of subrogation, for the insurer can only take such rights as belong to the insured at the time of loss.2 An agreement in a bill of lading that the carrier, if he incurs liability by loss or damage to goods, shall have the benefit of any insurance on them is not within the prohibition of a clause in the policy against selling, transferring, or pledging the interest of the insured in the policy.3 The mortgagee clause gives to the insurer a right of subrogation. If the insured has a contract right against his lessee to make good the damage for which he receives payment from the insurers, the latter, according to the English view, will be subrogated to that right.* The Massachusetts policy contains a subrogation clause. § 167. Proximate Loss: Spread of Fire. It not infrequently happens that the fire which causes the loss to the property of an insured person is negligently started by a common carrier or other person on premises more or less distant from the property of the insured. The insurers, upon paying the loss, thereupon become subrogated to the rights of the insured against the wrongdoer, under the doctrine which has just been explained. The prosecution of these rights often involves the difficult question, in respect to the spread of the fire, how far the damages caused thereby are to be attributed to the negligence of the wrong-doer as a proximate cause. The proximate cause is the efficient, controlling cause which produces the effect without the intervention of any new and extraordinary agency. 1 Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 173. 2 Platt v. Richmond Y. R. & C. R. R. Co., 108 N. Y. 358. Jackson Co. v. Boylston Mut. Ins. Co., 139 Mass. 508; s. c., 52 Am. Rep. 728. * Jackson Co. v. Boylston Mut. Ins. Co., 139 Mass. 508; s. c., 52 Am. Rep. 728. 560. Darrell v. Tibbetts, 5 Q. B. D. It is to be determined not so much by any relationship of propinquity in time or space, as by the intimacy of connection between the negligent act and the resulting consequences. Thus, results are proximate, whether to be foreseen or not, which follow the cause without any unusual disturbance in the operation of the laws of nature. If an efficient, adequate cause is found to account for the result, it must be deemed the true cause, unless some other, not incidental to it but independent of it, is shown to have intervened between it and the result. It is natural for fire to spread so long as there is anything near at hand to burn, and the dangerous character of this element presents no excuse for imprudence in its use. Though the number of sufferers from a conflagration may be very many, and the extent of the damage very great, this offers no reason for shifting the burden of loss from those who are guilty to those who are innocent. The extent of proximate loss ought not to be bounded by any limits of ownership, nor confined within any arbitrary walls, unless such boundaries are of such a character that they must be expected to prevent its extension. Whether the extent of the loss, under all the circumstances of the case, is remote or reasonably proximate is ordinarily a question for the jury.1 In Ryan v. N. Y. Central R. R. Co.,2 it was held that where a house in a populous city takes fire through the negligence of the owner or his servant, and the flames extend to and destroy an adjacent building some one hundred and thirty feet distant, the owner of the first building is not liable to the owner of the second building for the damage sustained thereby. So far as the Ryan case stands for the proposition that where the facts, with respect to the question of proximate cause, are sufficiently plain they present a question of law for the court, its doctrine has been very recently approved by the Court of Appeals.3 But as an exposition of the law, applicable in general to the question of proximate loss by the spread of fire, it is opposed by the current of judicial opinion, and has been so far 1 Milwaukee, &c., R. R. Co. v. Kellogg, 94 U. S. 469. 235 N. Y. 210. Read v. Nichols, 118 N. Y. 229. distinguished by the courts of the same State as to have lost much of its authority.1 The course of reasoning exhibited in the opinion of the court. must have had its origin in a feeling of sympathy in view of the momentous consequences which might be involved in the negligent use of fire, rather than in any sense of justice.2 $ 168. Limitation of Time to Sue.-No suit or action shall be sustainable until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire. A compliance with all the provisions of the contract is expressly made a condition precedent. Without this provision, it had been said that the appraisal clause was an independent and collateral agreement, and that suit might be brought by the insured upon the policy without complying with the requirements of the appraisal clause.3 The limit of one year for bringing suit is valid, and must be observed, and under the wording of this clause the twelve months begin to run from the time of the fire, and not from the time of service of proofs of loss, which, under the former wording of the policy, was held to be the effect of it.5 A provision limiting the insured to a particular place or forum for his action at law would be invalid." The Federal Supreme Court was of opinion that the intervention of war would override this clause of the policy." The Massachusetts clause names as the limit of time for bringing suit two years from the time the loss occurred. Some of the States have passed statutes upon this subject. (See appendix.) 'King v. Watertown Fire Ins. Co., 47 Hun, 1. 1 Webb v. Rome W. & O. R. R. Co., 49 N. Y. 420. Tanner v. N. Y. Central Co., 108 N. Y. 623. Hine v. 5 Steen v. Niagara Fire Ins. Co., Cushing, 53 Hun, 519. 89 N. Y. 315; s. c., 42 Am. Rep. 297. Perley v. Eastern R. R. Co., 98 Nute v. Hamilton Mut. Ins. Co., 6 Gray, 174. 'Semmes v. City Fire Ins. Co., 13 Wall. 158. § 169. Mutual Companies.-If this policy be made by a mutual company having special regulations, such regulations shall form a part of the policy as the same may be written or printed upon, attached or appended hereto. The regulations or by-laws of mutual companies often affect the particulars of the contract. These regulations are binding upon the policy holders, who in mutual companies constitute the members of the company, and some of the courts have held that they were peculiarly and conclusively binding, to such an extent that even the officers of the company would have no authority to waive them where they constitute essential provisions of the contract.1 This direction of the standard policy wisely and equitably provides that such regulations must be disclosed in connection with the contract itself. This clause does not appear in the Massachusetts policy, but the Massachusetts public statutes and the statutes of other States provide that provisions of the by-laws or the application which form a part of the contract must be set forth in the policy. § 170. Last Clause of the Policy-Authority of Agents to Waive.-The importance of this clause to the insurance companies is illustrated by the frivolous and oftentimes false testimony by which, under the doctrine of waiver and estoppel, the essential conditions of the written policy are subverted. The provisions of the clause are not invalid upon their face or contrary to public policy, and are to be enforced, except as the facts amounting to a waiver of the clause itself, or to an estoppel against the company, are clearly established." But the embarrassing question arises whether a clause which provides for an exclusive method of waiver may itself be waived in some other manner; in other words, how far the doctrine of waiver and estoppel derives its sanction from a rule of law independent of the contract and superior to it. This question has already been discussed and illustrated by a numerous citation of authorities in Chapters VII. and VIII. 1 Brewer v. Chelsea Mut. Fire Ins. Co., 14 Gray, 203. Pitney v. Glens Falls Ins. Co., 65 N. Y. 21. Allen v. German Amer. Ins. Co., 123 N. Y. 6 (1890). Messelbach v. Norman, 122 N. Y. (578 1890). The clause seems to have been framed with reference to the ruling in Walsh v. Hartford Fire Ins. Co.,1 which held that a somewhat similar stipulation in the policy operated to curtail the more ample ostensible authority vested in the agent. But in that case the agent was not an officer, and the clause of that policy did not purport to prevent all possible representatives of the company from granting a waiver, nor was any testimony adduced by the plaintiff showing that the company had allowed its agent to exercise a broader authority than that defined by the policy. This clause of the standard policy is ingeniously worded in an attempt to abolish altogether the doctrine of parol waivers established by law; and in a recent case, rightly decided upon its facts, the New York Court of Common Pleas apparently were of opinion that this result had been accomplished. Such also appears to be the doctrine of the Massachusetts court.3 But for the reasons already given it seems to accord better with the current of authority to say broadly that the insurers may, in spite of this contract stipulation, effect an oral waiver through their agent as to this or any other clause of the policy, provided, as a matter of fact, the agent has the requisite authority as defined by the relations existing between the company and himself. The clause in question purports to cover two points which are quite distinct and ought to have been kept distinct: (1) The authority of the agent, which is properly the subject of a notice. rather than a stipulation; and (2) the method of exercising that authority, which it is altogether appropriate to incorporate into the contract as one of its conditions. The prevailing opinion with reference to the first point, as we have seen, appears to be that such notice or stipulation is not binding upon the insured during the preliminary negotiations or execution of the application, unless it is inserted in the application itself; as to the second point, it has repeatedly been 173 N. Y. 5. 2 Hill v. London Assur. Co., 16 Daly, 120; see also the later well-considered opinion of Judge McAdam in the same case, in the City Court of New York, 26 Abb. N. C. 203. Kyte v. Commercial Union Assur. Co., 144 Mass. 46. Kister v. Lebanon Mut. Ins. Co., 128 Pa. St. 553; s. c., 15 Am. St. Rep. 696. |