Aisenberg v. Royal Ins. Co.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: 165 N.E. 682,266 Mass. 543
• Parties: AISENBERG et al. v. ROYAL INS. CO., Limited.
• Decision Date: 27 March 1929

266 Mass. 543
165 N.E. 682

AISENBERG et al.
v.
ROYAL INS. CO., Limited.

Supreme Judicial Court of Massachusetts, Worcester.

March 27, 1929.

Report from Superior Court, Worcester County; Henry T. Lummus, Judge.

Action by Samuel Aisenberg and others against the Royal Insurance Company, Limited. A demurrer to the declaration was sustained and the case reported to the Supreme Judicial Court. Order sustaining demurrer affirmed.

[266 Mass. 544]

[165 N.E. 683]

L. E. Stockwell, of Worcester, for plaintiffs.

W. B. Leach, Jr., of Boston, for defendant.

RUGG, C. J.

This is an action of contract upon a policy of insurance issued by the defendant to one Hildreth, who [266 Mass. 545]assigned to the plaintiffs all his rights to claims arising thereunder. Copy of the policy is annexed to the declaration. In general Hildreth by the policy was insured against certain losses arising in conducting trucking business. Specifically it was agreed that the policy should apply on merchandise of the insured's own or held by the insured ‘in trust or on consignment or on commission while on board’ designated motor vehicles ‘against the risks of * * * theft of an entire shipping package.’ Further averments of the declaration are that while the policy was in force the plaintiffs shipped by the insured large quantities of merchandise; that while in transit on motor vehicles of the insured described in the policy ‘certain parts of said merchandise’ were stolen therefrom; that the plaintiffs recovered judgment therefor against the insured, who assigned to the plaintiffs his rights against the defendant under the policy; that demand for payment was made upon the defendant; that ‘all the terms of said policy have been complied with on the part of’ the insured and the plaintiffs.

The defendant demurred to the declaration.

[1][2][3] The policy contained a clause entitled, ‘Notice and Proof of Loss.’ This clause does not differ in substance and effect from the similar clause in the standard form of fire insurance policy in G. L. c. 175, § 99, and varies from it so far as here material only in particulars required by the differences in risks insured against. A clause of that character often has been held to be a condition precedent. Boruszweski v. Middlesex Mutual Assurance Co., 186 Mass. 589, 590, 72 N. E. 250, and cases there collected. Parker v. Middlesex Mutual Assur. Co., 179 Mass. 528, 530, 61 N. E. 215. See Larner v. Massachusetts Bonding, etc., Co., 238 Mass. 80, 82, 130 N. E. 92;

[165 N.E. 684]

Shapiro v. Security Ins. Co., 256 Mass. 358, 365, 152 N. E. 370. Since it is a condition precedent, it must be averred specifically in the declaration that it was performed or want of performance excused. A general allegation of compliance with the terms of the policy is not sufficient. G. L. c. 231, § 7, cl. 12; Newton Rubber Works v. Graham, 171 Mass. 352, 50 N. E. 547;Palmer v. Sawyer, 114 Mass. 1, 13, 14;Marsch v. Southern New England R. Corp., 230 Mass. 483, 490, 120 N. E. 120;Fried v. Singer, 242 Mass. 527, 532, 136 N. E. 609.[266 Mass. 546]See, also, G. L. c. 231, § 147, Form 10 (d). Absence of this necessary averment from the declaration is proper ground for demurrer. Lamson Consolidated Store Service Co. v. Prudential Fire Ins. Co., 171 Mass. 433, 50 N. E. 943;Harris v. North American Ins. Co., 190 Mass. 361, 373, 77 N. E. 493,4 L. R. A. (N. S.) 1137. See Second Society of Universalists v. Royal Ins. Co., 221 Mass. 518, 527, 529, 109 N. E. 384, Ann. Cas. 1917E, 491.

It follows that the first two and eighth grounds of demurrer, to the effect that a...