320 Mass. 719 | Mass. | 1947
This is an action of contract upon a policy of burglary insurance issued by the defendant to the plain
One of the conditions of the policy was that “Affirmative proof of loss under oath in such detail as required by and upon such forms as are provided by the company shall be furnished to the company within sixty days from the date of the discovery of the loss.” The loss was discovered on the morning of December 30, 1943. The judge found, as he was obliged to on the evidence, that no proof of loss was furnished to the company by the plaintiff as required by the provision of the policy quoted above. But he found that the defendant “waived its right to receive from the plaintiff sworn proof of loss.” The defendant contended that there was no evidence to warrant a finding of waiver, and duly excepted to the judge’s denial of requests for rulings raising that issue.
It is established law that the failure to file the required proofs of loss within the time limited bars recovery unless the failure is excused or has been waived. Paulauskas v. Fireman’s Fund Ins. Co. 254 Mass. 1. Holich v. Globe & Rutgers Fire Ins. Co. 272 Mass. 587, 589. Ray v. Fidelity & Deposit Co. 275 Mass. 184. Jackson & Co. (Inc.) v. Great American Indemnity Co. 282 Mass. 337, 339. Goldman v.
The doctrine that a denial of liability on other grounds precludes an insurer from relying on a failure to furnish proofs, although commonly called waiver, is based on principles of estoppel. See Blake v. Exchange Mutual Ins. Co. 12 Gray, 265, 271-272; Graves v. Washington Marine Ins. Co. 12 Allen, 391, 394; Sheehan v. Commercial Travelers Mutual Accident Association, 283 Mass. 543, 551; National City Bank v. National Security Co. 58 Fed. (2d) 7, 10 (C. C. A. 6); Underwood v. Farmers’ Joint Stock Ins. Co. 57 N. Y. 500, 506; Matthews v. Capital Fire Ins. Co. 115 Wis. 272, 275. Williston on Contracts (Rev. ed.) § 742, especially note 4. The estoppel arises from the fact that
This principle is applicable here, for the defendant’s letter of April 29 denying liability on another ground was written at a time when compliance with the requirement as to proofs was no longer possible. In these circumstances it is not open to the plaintiff to contend that his failure to furnish proofs was occasioned by any act of the defendant. The cases of Searle v. Dwelling House Ins. Co. 152 Mass. 263, and Shapiro v. Security Ins. Co. 256 Mass. 358, relied on by the plaintiff, are distinguishable from the case at bar since in those cases.there 'was evidence of conduct of the defendant, before the time for performance of the condition expired, inducing noncompliance on the part of the plaintiff.
It follows that the defendant’s first and eighth requests for rulings should have been granted. Since the plaintiff’s case fails because of noncompliance with the condition of the policy requiring proofs of loss, it is. not necessary to consider whether it fails on any of the other grounds argued by the defendant.
Exceptions sustained.
Judgment for the defendant.
These were: “1. The evidence does not warrant a finding for the plaintiff.” “8. The evidence does not warrant a finding that' the defendant waived the requirement of affirmative proof of loss.”
Travelers’ Ins. Co. v. Nax, 142 Fed. 653, 657 (C. C. A. 3). National City Bank v. National Security Co. 58 Fed. (2d) 7, 10 (C. C. A. 6). J. T. Knight & Son, Inc. v. Superior Fire Ins. Co. 80 Fed. (2d) 311, 313 (C. C. A. 5). Commercial Fire Ins. Co. v. Waldron, 88 Ark. 120, 123. Buysse v. Connecticut Fire Ins. Co. 240 Ill. App. 324, 329. State Ins. Co. v. School District No. 19, 66 Kans. 77. Gambino v. Northern Ins. Co. 234 Mich. 651, 653. McPike v. Western Assurance Co. 61 Miss. 37. Continental Ins. Co. v. Chance, 48 Okla. 324. See Underwood v. Farmers’ Joint Stock Ins. Co. 57 N. Y. 500, 506,