275 Mass. 243 | Mass. | 1931
This is an action brought on an insurance policy to recover for the loss of the plaintiff’s automobile by theft. The plaintiff on October 11, 1927, purchased a seven-passenger sedan from the Boston Buick Company under a conditional sale contract, and a policy was issued to him by the defendant. On that date and for one month thereafter he lived in Revere. He then took the automobile to Miami, Florida, where he remained until he returned to Revere on or about July 20, 1928. During two weeks of his stay in Miami he carried passengers in the automobile and received compensation therefor at the rate of about $10 or $12 a day. On August 22, 1928, he parked the automobile on Ellis Street, in Lynn, and spent the evening at a theatre. When he returned at about eleven o’clock that evening to the place where he had parked the automobile, it was not there. It was later found in a damaged condition in Peabody. It was agreed in open court that the plaintiff gave proper notice of the loss to the defendant, and that an adjuster representing the defendant and another adjuster duly authorized by the plaintiff entered into an agreement whereby the provision in the policy with respect to arbitration was waived upon an agreement being made that the amount of the loss was $675.
The relevant provisions of the policy contained the following recitals: “ , . . This policy is made and accepted subject to the provisions, exclusions, conditions and warranties set forth herein (including those printed on the following pages) or endorsed hereon, and upon acceptance of this policy the Assured agrees that its terms embody all agreements then existing between himself and the Company . . . NOTICE AND PROOF OF LOSS, In the event of loss or damage the Assured shall give forthwith notice thereof in writing to this Company; and within sixty (60) days after such loss, unless such time is extended in writing by this Company; shall render a statement to this Company signed and sworn to by the Assured, stating
At the close of the plaintiff’s case the defendant rested and filed a motion for a directed verdict which was denied subject to its exception. The defendant also excepted to the refusal of the judge to give its first and tenth requests, and to such portions of the charge as were inconsistent with those requests.
' It has long been settled that, under a provision in a policy of insurance providing that the insured in case of loss shall render within a time specified a sworn statement of such loss, such a provision must be complied with to entitle the insured to recover. The performance of such a provision is a condition precedent to the defendant’s liability. Boruszweski v. Middlesex Mutual Assurance Co. 186 Mass. 589. Rockwell v. Hamburg-Bremen Fire Ins. Co. 212 Mass. 318. Urbaniak v. Firemen’s Ins. Co. of Newark, 227 Mass. 132. Navickis v. Fireman’s Fund Ins. Co. 235 Mass. 256. Larner v. Massachusetts Bonding & Ins. Co. 238 Mass. 80, 82. Shapiro v. Security Ins. Co. 256 Mass. 358, 365. Ray v. Fidelity & Deposit Co. of Maryland, ante, 184. The policy in the case at bar required the insured within sixty days, unless the
In view of the conclusion reached, it is unnecessary to consider whether the plaintiff is precluded from recovery upon other grounds argued by the defendant. As the defendant’s motion for a directed verdict should have been granted, all other exceptions have become immaterial.
Exceptions sustained.
Judgment for the defendant.