226 Mass. 281 | Mass. | 1917
There were two counts in the plaintiff’s declaration. The first was based on the theory that the defendant had insured her property by the issuance of a written contract of insurance. At the trial it was conceded by the plaintiff that there could be no recovery on that count and it drops out of the case. The second count, which now alone is material, alleged that the defendant on July 24,1913, orally agreed with her to and did then insure her property against loss by fire for á period of six months in the sum of $2,000. The plaintiff’s case is not that there was a contract to insure in the future which has been broken, but an actual oral insurance under which she is entitled to recover.
It has been decided in numerous cases that oral contracts of
The plaintiff’s rights depend upon the terms of the contract winch she offered evidence tending to prove. The testimony of the plaintiff upon this point was in substance that, having long done business with one Mercer, an assistant or co-manager or agent for the defendant, she went to his office on July 24,1913, and on inquiry was told that he was out; that one Oates tasked what she wanted and to him she said that she wanted to get insurance for six months in the sum of $2,000 on everything (with a few named exceptions) in a twenty-three room house at Squantum, the location of which she described; that she was told that the rate would be $8 per thousand; that Oates wrote a memorandum of what she wanted and she requested him to give it to Mercer; that “Oates then said to her that he would give it [to Mercer] and that she not worry that she was covered;” that she then paid $3 and told “Oates that she would be in later to settle up.” She received no communication from Mercer, Oates or the defendant, and did not go to the office again until after the goods were destroyed by fire on December 23, 1913. The testimony of Oates was altogether . different.
No policy of insurance was made out. The plaintiff’s case must stand or fall on her own statement of the contract. The essence of her statement of what occurred is that the agent, after making notes of the facts material for writing a policy of insurance, said that she was “covered.” The case turns on the significance of these words. That must be determined from all the circumstances under which they were used, including the person to whom they were addressed and the person by whom they were uttered. They were addressed to a woman who had come in search of another man
It is apparent that the authority of the ordinary insurance agent must be so limited when regard is had to the elaborate system established by St. 1907, c. 576, and acts in amendment thereof, for the ascertainment of the financial responsibility and standing of insurance companies and the suspension by the insurance commissioner of permits to do business to those companies which are not financially sound. It cannot be presumed in the absence of special authority that an ordinary insurance agent can bind insurance companies by oral contracts of insurance for other than temporary purposes or on occasions akin to emergencies. Otherwise insurance companies might be involved in liabilities of which they might have no record, or insufficient records, for inspection by the commissioner and their financial soundness be difficult if not impossible of ascertainment.
If the plaintiff was depending upon herself it was her duty, in order to be insured for the entire period, to do something within a reasonable time to make certain that the cover had ripened into a formal contract of insurance. If she chose to rely upon the agent of the defendant, she must prove that that was done by him.
Although the plaintiff testified that she had placed her insurance for many years through Mercer, and it had been his custom to keep her policies until the premiums were paid in full, and they often were paid in instalments, this does not justify reliance upon a simple agreement to cover her property by insurance long after the expiration of a reasonable time for the completion of the con
The verdict should have been directed for the defendant in accordance with its first request for instructions. The defendant’s exceptions are sustained and, in conformity with St. 1909, c. 236, judgment is to be entered in the Superior Court for the defendant and rescript is to go to that effect.
So ordered.