298 Mass. 487 | Mass. | 1937
The policies of fire insurance upon which these actions are brought covered personal property in the plaintiff’s photographic studio. All of the policies are in the Massachusetts standard form; all are dated either December 3 or December 4, 1930; and all contain the following provision: “This policy shall be void ... if the insured shall make any attempt to defraud the Company either before or after the loss.”
On December 23, 1930, a destructive fire occurred in the studio. On January 7, 1931, the plaintiff “filed” with the companies’ adjusters an unsigned typewritten list entitled, “Fire Loss of George Gechijian ...” and containing one hundred eighty-three items of personal property. Opposite each item was a figure, presumably representing dollars, all of the figures being arranged in a column under the heading, “Value.” The total of these figures was $27,081. Under a heading, “Loss,” no figures were inserted. No jurat was attached. This schedule was “filed” early in the negotiations for adjustment of the loss. It was not, however, a part of the formal proofs of loss required by the policies. The plaintiff testified that the figures given in this schedule represented replacement values and that the real values were to be determined later. The plaintiff and the companies did agree later that the sound value of the property was $15,000 and that the loss was $13,000. The judge found that in the schedule the plaintiff “knowingly exaggerated the sound value of the property in order to be in a more advantageous position to be paid for the real loss suffered, but not with the intent to defraud the insurers.” The principal question in the case is whether these findings are mutually inconsistent so that they cannot stand together. Stated differently, the question is whether the plaintiff in furnishing to the insurers the schedule wherein he “knowingly exaggerated the sound value of the property in order to be in a more advantageous position to be paid for the real loss suffered” did as matter of law attempt to defraud the companies after the loss in violation of the provision of the policies hereinbefore quoted.
In our opinion a design on the part of the insured to gain
So far as we know this precise question has not arisen before in this Commonwealth. Cases in which there was no intent to deceive or defraud are not in point. See, for example, Towne v. Springfield Fire & Marine Ins. Co. 145 Mass. 582. The implications in Little v. Phoenix Ins. Co. 123 Mass. 380, at page 385, as far as they go, tend to support this decision, and there is nothing to the contrary in Dolan v. Mutual Reserve Fund Life Association, 173 Mass. 197, or in De Guzzi v. Prudential Ins. Co. 242 Mass. 538.
The case of Sleeper v. New Hampshire Fire Ins. Co. 56 N. H. 401, is almost on all fours with the case at bar. It was there found that the insured overstated his loss to induce the company to make a speedy settlement and to prevent controversy, but without any purpose to obtain a greater sum than the insured considered the company liable to pay. The court held that this was an attempt on the part of the insured “to deceive the insurers by a statement which he knew to be false, and done with the purpose of securing some advantage to himself at the expense of the defendants ” (page 408), and that the insured could not recover on the policy. Other decisions, although not so closely in point, tend toward the same result. Claflin v. Commonwealth Ins. Co. 110 U. S. 81. Dolloff v. Phoenix Ins. Co. 82 Maine, 266. Moreau v. Palatine Ins. Co. 84 N. H. 422. Virginia Fire & Marine Ins. Co. v. Vaughan, 88 Va. 832, 840. Fink v. La Crosse Mutual Fire Ins. Co. 203 Wis. 350, 357. Columbian Ins. Co. v. Modern Laundry, Inc. 277 Fed. 355. Globe & Rutgers Fire Ins. Co. v. Stalled, 68 Fed. (2d) 237.
But the plaintiff argues in substance that the defendants have not been injured by the action of the trial judge, because the defendants waived their defence by accepting through brokers and agents payment of the premiums on the policies after the fire and after knowledge of the matters
For the purposes of the foregoing discussion we have assumed, but without deciding, that payments of premiums to the plaintiff’s brokers were equivalent to payments to the defendants. See G. L. (Ter. Ed.) c. 175, § 169; Ritson v. Atlas Assurance Co. Ltd. 279 Mass. 385, 391; Kyte v. Commercial Union Assurance Co. 144 Mass. 43, 46.
If the defendants are ultimately found liable, interest will begin to run sixty days after the receipt by them of written notice of the fire. G. L. (Ter. Ed.) c. 175, § 102 (now amended by St. 1934, c. 110, § 1).
Questions based upon requests for rulings and questions of evidence, in so far as not already covered, may not arise at another trial and need not be discussed now.
Exceptions sustained.