316 Mass. 652 | Mass. | 1944
This is an action of contract to recover money paid by the plaintiff to a shipper of goods which were stolen while in course of transportation in a truck
Material facts disclosed by the evidence are these. The action was brought after Bolta Rubber Co. Inc. v. Lowell Trucking Corp. 304 Mass. 426, was decided. In that case a bill in equity was brought by the Bolta company against the trucking company and the plaintiff in the present case as the insurer seeking to reach and apply the obligation of the insurer in satisfaction in part of a judgment previously obtained by the Bolta company against the trucking company for the loss of goods stolen from its truck. A final decree was entered in that suit ordering the insurer, the plaintiff in the present case, to pay to the Bolta company $1,055, interest and costs. Upon appeal to this court the decree was affirmed. The plaintiff complied with the decree. The present action is brought under the terms of a policy of insurance issued by the plaintiff to the defendant under date of December 1, 1936. The policy covered loss of property upon trucks of the defendant equipped with the Babaco alarm service. Under the heading of “Conditions,” it provided that “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless the Assured shall have fully complied with all the requirements of this policy . . ..” The policy also contained the following provision: “In consideration of the rate at which this insurance is written it is warranted by the assured that the trucks . . . used in long distance trucking including route from . . . Lowell, Massachusetts to New York, N. Y. are equipped with the Babaco Alarm System . . .. It is further warranted by the Assured that such ‘Babaco’ equipment protecting the cargo compartment shall be in the ‘on’ position except with respect to any truck . . . which is actually being loaded and/or unloaded . . ..” There was an indorsement on the policy whereby, “In consideration of the premium stated in the policy to which this endorsement is attached, the
The defendant’s exceptions are to the denial of certain of its requests for rulings, which were in substance to the effect that the evidence would not warrant a finding for the plaintiff, that it did warrant a finding for the defendant, and that the plaintiff had waived the terms and conditions of the policy of insurance upon which it relies by increasing the limit of its liabilities from $50,000 to $60,000 by indorsement made subsequently to the time when it had full knowledge of the loss in question, and by accepting payments of premiums upon the policy after that time. Among other contentions the plaintiff has argued that as matter of law the liability of the defendant to the plaintiff was conclusively adjudicated in Bolta Rubber Co. Inc. v. Lowell Trucking Corp. 304 Mass. 426, in which case the plaintiff in the present case was in essence the principal defendant. There is nothing in this point. Brown v. Great American Indemnity Co. 298 Mass. 101, 105.
In the matter of the requests for rulings of the defendant bearing upon the questions of waiver or estoppel, the judge found specifically that the plaintiff did not have "full knowledge of the loss referred to as occurring on August 16, 1937, at the time [the] policy . . . was increased or during the period from August 16, 1937, to November 6, 1937, wherein it accepted premiums on [the] policy . . . and . . . [he]
The defendant has also argued that, since the indorsement on the policy upon which the plaintiff seeks to recover, namely, that including the provision that the “insured agrees to reimburse the Company for any payment made by the Company on account of any loss or damage involving a breach of the terms of the policy and for any pay
There was no error in the denial of the defendant's requests for rulings to the effect that the evidence did not warrant a finding for the plaintiff. There was also no error in the denial of the request that as matter of law the evidence warranted a finding for the defendant. The denial of this request can stand only if as matter of law the evidence would not warrant such a finding. Since upon all the evidence a finding by the judge was required as matter of law that the defendant had broken the terms and conditions of the policy and indorsement thereon, and upon the specific findings of the judge a finding was required as matter of law that the defendant had not sustained the burden of proving a waiver by the plaintiff of said terms and conditions, the ruling in question could not have been granted properly by the judge. Treating the denial of the request in question as a ruling of law that the evidence would not warrant a finding for the defendant, we are of opinion that it was correct. See Hoffman v. Chelsea, 315 Mass. 54, 55, 57, and cases cited. Ryerson v. Fall River Philanthropic Burial Society, 315 Mass. 244.
Exceptions overruled,..
Motor Carrier Act of August 9, 1935, c. 498, 49 U. S. Sts. at Large, 543, U. S. C. (1934 ed.) Sup. IV, Title 49, §§ 301-327. See Bolta Rubber Co. Inc. v. Lowell Trucking Corp. 304 Mass. 426, 429.