256 Mass. 358 | Mass. | 1926
This is an action to recover under a fire and theft insurance policy for loss of the plaintiff’s automobile by theft. The declaration as amended alleged, among other things, that the plaintiff had done everything required of him under the terms of the policy, and that the defendant had waived the requirements of the policy with reference to proof of loss. The answer as amended contained a general denial, with a further allegation that the plaintiff had not complied with the provisions regarding proof of loss. At the close of the evidence, the defendant presented a motion for a directed verdict. The trial judge submitted three questions to the jury, and in answering them the jury found that the cost of the automobile to the plaintiff was $2,400; that the car was stolen; and that the damage was $1,140. The judge then allowed the defendant’s motion.
The case was reported under a stipulation that, if any evidence or offer of proof was wrongly admitted or excluded over exception, the Supreme Judicial Court, in considering the correctness of the allowance of the motion for a directed verdict, might treat the issue on the basis of the evidence or offer which should have been admitted or excluded; and under a further stipulation that, if the motion upon the evi'dence thus considered was correctly allowed, judgment should be entered upon the verdict; that if the motion should have been denied and the case submitted generally to the jury, and there was no error prejudicial to the defendant in the refusal of its third request or in the charge on the same subject, or in the admission of testimony over the defendant’s objection, judgment was to be entered for the plaintiff for $1,140 as of the date of the verdict, with costs; otherwise the case to be sent back for a new trial.
One of the warranties in the policy was that the automobile was second hand when bought, and that its actual cost to the assured, including equipment, was $2,400. It appeared in
The defendant contends that the policy was avoided because of the plaintiff’s concealment or misrepresentations of material facts, in stating to the adjuster that the car had never been in any collision, fire or theft, while in his testimony he said that he had an accident or collision with the car in Rhode Island about a' year before and that the statement • to the adjuster was untrue. The plaintiff in his statement taken by the defendant’s attorney said that his broker had a renewal policy in the same company ready for him when the loss occurred and had so advised him, while in his testimony he said that he had had no talk with his broker pr anyone else about insurance. The broker also testified that he had been unsuccessful in getting a renewal and had done nothing about getting a policy from another company. This evidence presented issues of fact for the jury and did not require as matter of law a directed verdict. Little v. Phoenix Ins. Co. 123 Mass. 380, 385. Goldstein v. Franklin
The policy provided that no officer, agent or other representative of the company should have power to waive any of the terms of the policy unless such waiver were written upon or attached thereto. It required the assured within sixty days after a loss to render to the company a statement signed and sworn to by him stating the place, time, and cause of loss, the interest of the assured in the property and the sound value thereof. The day after the alleged theft, June 15, 1922, the plaintiff gave notice thereof to the agent who placed the insurance for him, and this agent notified the office of one Peters who, at that time, was the agent and underwriter of the defendant for its automobile business. That office had been instructed by the defendant to use one Hannon as adjuster on automobile losses and adjustments. The claims clerk in the Peters office asked Hannon to be adjuster in the plaintiff’s case. It was agreed that Hannon might be considered the insurance adjuster in the case, and a letter from the defendant company, not admitted in evidence but which if wrongly excluded this court might consider in passing upon the order directing a verdict for the defendant, stated, in referring to Hannon: “When this claim was reported we placed the adjustment of the loss in the hands of a reputable adjuster in Boston.” The adjuster saw the plaintiff within a day or two and asked him about the things necessary for an adjustment and wrote a statement, which the plaintiff signed, giving information of the time and place of the theft, the. place where the automobile was bought, the fact that it was paid for, was never loaned, never in a collision, that it was recently equipped with tires, that there was no other insurance, and giving a description of the car. There was evidence that the adjuster then said that he then wanted no more particulars and would let the plaintiff know if he wanted anything more. The adjuster had papers with him from the company, but what they were did not appear. The plaintiff was examined in June, 1922, by counsel for the defendant with the assistance of its adjuster. He met counsel in response to a letter which contained, among other things,
About a month after the theft the agent who placed the plaintiff’s insurance made inquiries of the adjuster concerning the plaintiff’s claim and was told "We are investigating; you will hear from mé or come in and see me in about a week or two.” A second call was made as requested and the adjuster said they were still investigating; and at a third interview, the exact date of which did not appear, the adjuster said to the agent "I don’t think the company will pay the loss,” and referred him to counsel. There was evidence tending to prove that when the claim was turned over to the adjuster the matter was left entirely to him so far as the Peters office was concerned.
The examination in the attorney’s office signed and sworn to by the plaintiff was offered as a proof of loss and as evidence of waiver. It was admitted on the issue of waiver and then as competent evidence in the case, the significance of it to be determined afterward.
The policy provided that the company should not be held to waive any provisions or conditions of the policy or any forfeiture thereof by any requirement, act or proceeding on its part relating to the appraisal or to any examination pro
An adjuster with authority to adjust a loss may be found to have authority to waive formal proof of claim. It was said in Little v. Phoenix Ins. Co. 123 Mass. 380, where there was evidence that the agents were charged with the whole duty of settling losses and in this respect represented the company, “As a necessary incident, they had the power to dispense with those stipulations for the benefit of the company, which had reference to the mode of ascertaining the liability and limiting the right of action.' ’ In the absence of evidence of the actual authority of the adjuster, it is to be assumed that he had power to bind the company in the ascertainment of what the damage was, and in adjusting the cost of repairing it. Chisholm v. Royal Ins. Co. Ltd. 225 Mass. 428, 430, 431. If an adjuster is sent by a general agent to investigate and adjust a loss it is within the apparent scope of his authority to waive proofs of loss, and to agree upon the amount of the loss. Wholley v. Western Assurance Co. 174 Mass. 263.
The ground of the decisions holding that the requirement as to proof of loss has been waived is, that it is against good faith for the defendants, after they have lulled the plaintiffs into a feeling of security, to object at the trial that the proofs were not sufficient. Butterworth v. Western Assurance Co. 132 Mass. 489, 492. Graves v. Washington Marine Ins. Co. 12 Allen, 391. A provision in the policy that no clause shall be waived except by writing indorsed thereon does not preclude the company from thereafter authorizing a waiver in some other way. Blake v. Exchange Mutual Ins. Co. 12 Gray, 265, Porter v. United States Life Ins. Co. 160 Mass. 183, 186, Insurance Co. v. Norton, 96 U. S. 234, 240, Northern Assurance
In Searle v. Dwelling House Ins. Co. 152 Mass. 263, 265, the plaintiff made an informal statement of loss but no formal proof. The defendant, in reply to an inquiry from a local agent concerning the loss, written after the time for filing proof of loss had passed, placed its refusal to pay on misconduct of the plaintiff and not upon deficiency in the notice. The court said, “Where insurers make no objection to prehminary proof, but put their refusal to pay on some other ground, it is a reasonable inference that they waive any deficiency therein.” The court also referred to the fact that the defendant could not in any way have been harmed by the failure to file proof of loss because it was in possession of all the details of the loss by the report of the adjuster upon the informal paper. It is generally held that a denial of liability or a refusal to pay not predicated on the failure to furnish proofs is a waiver of any objection on that ground. Wheelock v. Postal Telegraph Cable Co. 197 Mass. 119, 124.
There was no prejudicial error in admitting the examina- • tian of the plaintiff on the issue of waiver.
The portion of the letter written by the defendant to counsel for the State insurance and banking department, relating to the appointment of the adjuster, and its grounds for refusing to pay, should have been admitted. The letter, being written after the period allowed for filing proof of loss, could not on principle be a waiver, but it indicated that the
All questions reserved by the report have been considered. The motion for a directed verdict should have been denied and the case submitted generally to the jury. In accordance with the terms of the report, judgment is to be entered for the plaintiff for $1,140 as of the date of the verdict with costs.
So ordered.