188 Mass. 560 | Mass. | 1905
This is an action of contract on a policy of fire insurance to recover for a total loss by fire of the property covered by the policy which consisted of household goods and furniture contained in “ the frame building formerly occupied as a private barn, owned by Francis Bump, situate on the west side of Broadway in the village of North Raynham, Mass.” The case was sent to an auditor and was heard by a judge of the Superior Court without a jury upon his report, it being agreed that certain facts found by him should be taken to be true so far as competent and material. Certain other facts also were agreed.- The judge found for the plaintiff, and the case is here on exceptions by the defendant to the finding and to the refusal of the judge to give certain rulings that were requested.'
The policy provides amongst other things that, “ In case of any loss or damage under this policy a statement in writing, signed and sworn to by the insured, shall be forthwith rendered to the company, setting forth the value of the property insured, the interest of the .insured therein, all other insurance thereon, in detail, the purposes for which and the persons by whom the building insured, or containing the property insured, was used, and the time at which and the manner in which the fire originated, so far as known to the insured.” The fire occurred on November 26,1899, and the statement was rendered according to the plaintiff’s contention on December 19, and according to the defendant’s contention not till March 15. The defendant further
The policy was issued at Taunton through the agency of Hammond, Morse and Company, who had authority to receive applications, take risks, countersign and issue policies and receive the premiums therefor'. It bore the lithographed signature of the “Manager of the Eastern Department” and was countersigned “ at Taunton ” by “ Hammond, Morse & Co., Agents.” The latter received the application, accepted the risk, took the premium, and as already stated issued the policy to the plaintiff. It is agreed- that Hammond, Morse and Company had no authority to adjust losses, but had authority to receive proofs of loss for the purpose of forwarding them to the company. The company received notice of the fire within forty-eight hours through its local agents and immediately sent out its adjuster with authority to adjust the loss. He called on the plaintiff and interviewed her about the fire and subsequently on December 7 wrote her as follows: “ I have to advise you that if you consider that you have a valid claim against the Lancashire Ins. Co. by reason of recent fire destroying certain furniture belonging to you in No. Eaynham, you will kindly forward the written statement called for by the statutes and the policy.” This was duly received by her, and certainly affords ground for the contention that it operated as a waiver of any delay that might have already occurred. Whether it constituted a waiver as matter of law it is not necessary to consider. Between the 7th and 19th of December a fire inquest was held by the marshal which was attended both by the plaintiff and the adjuster. What communications, if any, there were'between the plaintiff and the adjuster during this interval does not appear. But it would be extraordinary if the subject of the loss was not referred to, and it is possible that facts brought out at the inquest may have seemed to the adjuster to render a proof
Taking all of the circumstances into account we do not see how it can be said that the presiding judge was not warranted in finding that the defendant had waived strict compliance with the condition, and that, assuming that what took place constituted a valid delivery, the giving of the proof of loss to Hammond, Morse and Company on December 19 was a performance of the condition. Eastern Railroad v. Relief Ins. Co. 105 Mass. 570. Searle v. Dwelling House Ins. Co. 152 Mass. 263. Harnden v. Milwaukee Mechanics’ Ins. Co. 164 Mass. 382. Mandell v. Fidelity & Casualty Co. 170 Mass. 173. It is plain, however, that if the proof of loss was not delivered till March 15 when it was received by the defendant company the condition was not performed. And the defendant contends that what took place on December 19 did not amount to a delivery of the proof of loss to Hammond, Morse and Company. It bases this contention on the fact, which is agreed, that Hammond, Morse and Company had apparent authority to receive proofs of loss for the
If the proof of loss had been delivered to the defendant company and then immediately taken away with the defendant’s consent by the plaintiff or her counsel for the purpose of making a copy of it, there can be no question, we think, that there would have been a good and sufficient delivery of the proof of loss. And we think that it was within the apparent scope of the authority of Hammond, Morse and Company to allow the same thing to be done. There is no finding that the proof of loss was not delivered and borrowed in good faith, or that there was any intention in what was done to evade the conditions of the policy. The finding of the judge in favor of the plaintiff must be taken to negative anything of the kind. The fact that the proof of loss was retained so long a time cannot in the absence of any finding of a want of good faith invalidate the transaction. We think that what took place could be found to constitute a good delivery of the proof of loss.
The remaining question relates to the matter of interest. The defendant was summoned as trustee of the plaintiff in an action against her by C. E. Osgood and Company. That action was brought before this and is still pending. Referees were appointed under the policy and made an award in favor of the plaintiff before this action was brought. The defendant contended that if liable at all it was only liable for the amount of the award, and also asked the judge to rule that if entitled to recover the plaintiff was not entitled to interest. The judge found for the plaintiff for the amount of the award with interest from the date of the writ. We think that the allowance of
Ordered accordingly.
The case was submitted on briefs at the sitting of the court in November, 1904, and afterwards was submitted on briefs to all the justices.