Navickis v. Fireman's Fund Insurance, 235 Mass. 256

Navickis v. Fireman's Fund Insurance

235 Mass. 256 | Mass. | 1920

Braley, J.

The policy issued by the defendant to the HenleyKimball Company and the plaintiff’s intestate insuring as their interest may appear for the term of one year an automobile against certain perils including theft of the car, required that in the event of loss or damage the assured should forthwith give notice in writing to the company or the authorized agent who issued the policy, and within sixty days thereafter, unless the time was extended in writing, render a statement signed and sworn to by the assured stating the time and cause of the loss. If the assured failed to render such statement within the time specified or as extended, his failure “shall render such claim null and void.” The car was stolen. It is undisputed that the time never was extended, and the intestate, without having rendered a statement, died more than sixty days after the date of loss. But the defendant nearly six months thereafter, having paid to the Ilenley-KimbaU Company, which also had failed to render a statement, the amount of its insurable interest, and the jury having found that the automobile had not been used by the intestate to carry passengers for hire, a use expressly prohibited by the policy, the plaintiff claims as matter of law that the payment operated as a waiver of any statement by his intestate, and that he is entitled to the amount of insurance with interest as stipulated in the report.

The car was in the possession of the intestate under a conditional sale from the Henley-Kimball Company, by the terms of which a certain part of the purchase price had been paid in cash while the balance was payable in instalments. It was further provided that the conditional vendor should effect the insurance and pay the premium which was to be added to the price, and upon the final payment of the entire indebtedness a bill of sale was to be given. It is contended by the defendant that their relation was analogous to that of mortgagor and mortgagee under a policy made payable to the mortgagee as his interest may appear, and their *258interests being several, the contract of insurance could be enforced by either to the extent of his rights in the property, and a settlement with one would not bar the rights of the other if compliance with the precedent condition were shown. See Copeland v. Mercantile Ins. Co. 6 Pick. 197; Tate v. Citizens’ Mutual Life Ins. Co. 13 Gray, 79; Palmer Savings Bank v. Ins. Co. of North America, 166 Mass. 189; Swaine v. Teutonia Fire Ins. Co. 222 Mass. 108, 110; Beebe v. Ohio Farmers’ Ins. Co. 93 Mich. 514.

It is unnecessary, however, to determine the nature or scope of the contract, for on the record neither party had any enforceable rights. The payment therefore was a mere gratuity which did not operate as a relinquishment by the defendant of the right in the present action to insist upon a compliance with the terms of the policy. Rundel & Hough v. Anchor Fire Ins. Co. 128 Iowa, 575.

Judgment for the defendant on the verdict.