288 Mass. 409 | Mass. | 1934
These are actions of contract to recover premiums paid under certain Massachusetts standard fire insurance policies, the second against the agent who wrote the policies, and the first against the company which issued them.
The declarations are for the same cause of action. In the declaration in the case against Burnes the plaintiff alleges, in substance, that she was the holder of eight fire insurance policies covering certain premises in Boston, that the policies were cancelled, and that return premiums became payable to the plaintiff; that these return premiums were paid to the defendant who has failed to pay them to the plaintiff. In the declaration in the case against the insurance company the plaintiff alleges that policies were issued to her and were cancelled by the defendant and that return premiums due her have not been paid. The answers in the cases are the same, and include the defences that the actions were not brought within the period of limitations prescribed by the statutes; and that before the said cancellation the plaintiff transferred her interest in the property described in the policies, and thereby avoided them and extinguished any right to recover return premiums.
At the close of the evidence offered by the plaintiff the defendants rested and filed motions for directed verdicts, which were allowed. The plaintiff duly excepted, and the eases are reported to this court upon the stipulation that, if any question of fact should have been submitted to the jury, the plaintiff in each case will be entitled to recover.
It appears from the report that the plaintiff was the owner of certain real estate upon which insurance policies in the Massachusetts standard form were issued by the companies through their agent, the defendant Burnes. The
The plaintiff testified “that sometime in October [[August?], 1926, she was the owner of the premises” covered by the policies; that at no time did she receive a return premium on the policies; that she personally made no demand on the companies for return premiums; that she owed the defendant Burnes or the companies $700 for the premiums on the policies; that she authorized her father, Simon J. Bennett, to employ counsel to bring suit against Mrs. Olson for $1,200; and that she authorized her father to make a demand for the return premiums. On August 13, 1926, the plaintiff sold the property to Mrs. Olson but did not at any time in writing assign, transfer or release any interest in the policies. Before the sale to Mrs. Olson the plaintiff’s father commenced arrangements to dispose of the insurance. He testified that he had placed the insurance originally, and had acted in matters connected with it; that demands for premiums were sent to him; and that he dealt with Mrs. Olson, and tried to induce her to take the insurance when she should buy the property.
Upon the question whether Bennett in behalf of the plaintiff ever made any request of either defendant for a cancellation of the policies before the plaintiff sold the property, he testified as follows: “Before the transfer of August 13, 1926, took place he talked with Burnes at his office; he told Burnes that he was selling the property to Mrs. Olson; that she didn’t want to take the insurance and
The evidence shows that the plaintiff transferred her title to Mrs. Olson by delivery of the deed on August 13, 1926, and, on that day, several mortgages were discharged, and given. The record shows that the deed was recorded on August 21, 1926. It is plain that any demand after August 13, 1926, would not be effective. Bennett further testified that ''On the day when the papers were recorded he . . . went to Burnes and told him that the papers were recorded and that he wanted the policies cancelled and that Burnes told him that he couldn’t get the policies until Mrs. Olson sent in new policies .... Burnes told the witness to go again to see Mrs. Olson and . . . see if she would not take the policies. The witness promised Burnes to . . . see Mrs. Olson again.”
There is no evidence which would warrant a finding that there was any definite, unequivocal demand or request by the plaintiff or by any one representing her to cancel the policies. All that appears is that, before the sale of the property to Mrs. Olson, Bennett was endeavoring to persuade her to take over the policies, but without success. Bennett did not make any definite request or demand for an immediate or future cancellation of the policies. It is said to be a'' well-known principle that request for cancellation of an insurance policy must be unequivocal and absolute.” Magruder v. United States, 32 Fed. Rep. (2d) 807, 810. Lyman
In accordance with the stipulations recited in the report, the verdicts are to stand, and judgment is to be entered for the defendant in each case, and also in cases numbered respectively 282423, 282428 and 282431.
So ordered.