Pringle v. Spring Garden Insurance

205 Mass. 88 | Mass. | 1910

Morton, J.

Assuming without deciding that the special agent Blood had authority to waive the proof of loss and the submission to arbitration, we do not find it necessary to decide whether the letter sent by him to the plaintiff’s attorney could be found to constitute such waiver, since we are of opinion that the policy was void for want of the defendant’s written or printed assent to the removal of the goods from Sixth Street to Marlborough Street. The policy expressly provided that it should be void if the property was removed without the written or printed assent of the company, except that, if a removal should be necessary for the preservation of the property from fire, the policy should be valid without such assent for five days thereafter. It is not contended that it was necessary for the protection of the property to remove it, or that the company or the general agents Darling and Russell, whose territory included Chelsea, assented in writing or in print to the removal. The contention is in effect that the company is estopped by reason of what occurred between the plaintiff and Rogers from setting up that there was no written or printed assent by'it or its authorized agents to the removal. But it is expressly agreed that “ Rogers was not authorized by the defendant nor by Darling and Russell, nor by any one else in behalf of the defendant, to make contracts of insurance, nor to make indorsements on policies, nor to assent to removals of property,” and that he did not “ during the period of his subordinate agency make any contracts of insurance, nor assent, in writing or in print, to removals of property, nor make any indorsement on any of the defendant’s policies.” It is also expressly agreed that “Neither the defendant nor said Darling and Russell prior to the bringing of this suit knew that the plaintiff had given to said Rogers said policy, on or about June 15, 1907 [the date when, as the plaintiff testified, she took the policy to Rogers to have it changed so as to cover the property at Marlborough Street], nor of the conversations between the plaintiff and said Rogers on that date and on later dates.” There was nothing, therefore, in the nature of the authority which Rogers had, nor any such knowledge on the defendant’s part of what had transpired between the plaintiff and Rogers as to estop the defendant from objecting that the policy was void for want of its written or printed assent to the removal of the property. The fact that Rogers had transmitted the policy from the plaintiff to Darling and Russell for their written or printed assent to previous remováis does not and cannot operate to estop the defendant from relying on the fact that no such written or printed assent was procured to the removal in question. It is not necessary to consider whether Rogers is personally liable to the plaintiff. It follows that the judgment in favor of the defendant must be affirmed.

So ordered.