Parker v. Farmers' Fire Insurance

188 Mass. 257 | Mass. | 1905

Loring, J.

The exceptions in this case were taken at a second trial of the action against this defendant, which was before this court on exceptions taken when it was tried first together with a similar action against the Middlesex Mutual Assurance Company. (179 Mass. 528.) At the second trial the actions against both companies were tried, but exceptions taken in the action against this defendant only are before us.

1. The plaintiff’s first claim is that on the evidence at this trial the jury were warranted in finding that the defendant company waived a compliance with the clause requiring that a statement in writing shall be forthwith rendered to the company by the insured.

This case differs from the former in this, that here there was testimony that Davis said that “ the losses would be settled at the same time, and that the companies would settle both losses.” But there is no evidence that Davis’s action is binding on the defendant, and therefore it is not necessary to consider whether this would of itself have been a waiver; in which connection see Boruszweski v. Middlesex Assur. Co. 186 Mass. 589.

The plaintiff has undertaken to make out Davis’s authority to act for the defendant by showing that she got no answer to a letter written by her, dated October 31, “ properly addressed and stamped to the Farmers’ Insurance Company,” in which she stated that “ a man who said he represented your company and the fire marshal from Springfield, Mass., came here three days after the fire and saw my husband and myself, but did not look at the things we saved or go to the farm where the fire occurred. We have left the-few things which we were able to save here at Mr. Smith Jones for your agent to view them, but they have not done so. I am here on expense and would like to move the goods away. Can I do so. Please let me know at once.”

There is no statement in the letter which fairly can be taken to be a statement that the man came as an adjuster so as to make the defendant’s silence an admission of the truth of that fact. We assume that if Davis had authority to adjust the loss any act of his dispensing with a written statement would have bound the defendant, as to which see Little v. Phœnix Ins. Co. 123 Mass. 380. But as Davis was not shown to have had authority to act for the defendant in adjusting this loss, it is not necessary to consider whether what Davis did, not followed by further participation in adjusting the loss, would have been enough to dispense with or postpone the rendering of the written statement called for by the policy.

2. On the other issue, namely, whether this clause was complied with, there is no material difference between the evidence here and that before the court in 179 Mass. 528.

Judgment for the defendant on the verdict.