Avery v. Ward

• Decision Date: 26 November 1889
• Citation: 150 Mass. 160,22 N.E. 707
• Parties: AVERY v. WARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 160

22 N.E. 707

AVERY v. WARD.

Supreme Judicial Court of Massachusetts, Franklin.

November 26, 1889

COUNSEL

S.T. Field, for plaintiff.

Conant & Conant, for defendant.

OPINION

KNOWLTON J.

The principal question in this case is whether the oath taken by a policy-holder to the truth of a statement in writing setting forth the particulars of a loss under his policy of insurance against fire, is an oath "required by law," within the meaning of Pub.St. c. 205, § 2. This section is as follows: "Whoever, being required by law to take an oath or affirmation, willfully swears or affirms falsely in regard to any matter or thing respecting which such oath or affirmation is required, shall be deemed guilty of perjury." The statute of 1887, c. 214, § 60, which follows closely Pub.St. c. 119, § 139, prescribes the form of policy to be used by all fire insurance companies doing business in this commonwealth, and requires a provision in the policy that in case of loss "a statement in writing signed and sworn to by the assured, shall be forthwith rendered to the company, setting forth the value of the property insured," etc. In the absence of any modification of this provision by the parties, or waiver of it by the company, a policy-holder, whose property has been burned, is "required by law" to make such a statement, under oath, before he can maintain a suit to recover for his loss. The policy referred to in the present case contained this provision; and, under the instructions of the judge, the jury must have found that there was no waiver of it.

What interpretation should be given to the words "required by law," in the statute first quoted, is a question by no means free from difficulty. It has been said that the provision "might seem, from its very general language to embrace all cases where an oath had been lawfully administered in the execution of official duty." Jones v. Daniels, 15 Gray, 438. But in the same case it is suggested that the language of the original statute, from which it is derived, (St.1830, c. 56,) seems to have had reference to oaths required by special provisions of statute. Both of these remarks were entirely outside of the question involved in the case then decided, and we are not aware that the statute has ever been before the court for construction. The fact that in so general a revision of our laws as that of 1835 the language was considerably changed, and the...