Bean v. Philadelphia Fire & Marine Ins. Co.

• Decision Date: 02 February 1937
• Citation: 190 A. 131
• Parties: BEAN v. PHILADELPHIA FIRE & MARINE INS. CO. SAME v. MERCANTILE FIRE INS. CO. OF AMERICA.
• Court: New Hampshire Supreme Court

190 A. 131

BEAN

v. PHILADELPHIA FIRE & MARINE INS. CO.

SAME

v. MERCANTILE FIRE INS. CO. OF AMERICA.

Supreme Court of New Hampshire. Grafton.

Feb. 2, 1937.

Exceptions from Superior Court, Grafton County; Young, Judge.

Actions of assumpsit by Norman M. Bean against the Philadelphia Fire & Marine Insurance Company and against the Mercantile Fire Insurance Company of America. Judgment of nonsuit for defendant in each case, and plaintiff brings exceptions.

New trial.

Two actions of assumpsit, on policies of fire insurance covering the plaintiff's camp and its contents which were totally destroyed by fire. Trial by jury.

The fire occurred late at night on April 4, 1935. On April 6, 1935, after the plaintiff had been subjected to lengthy questioning in regard to the origin of the fire by the local chief of police and by the sheriff and solicitor of the county, his behaviour became so extraordinary that those officers sent for two doctors who, after examining the plaintiff, committed him to the state hospital in Concord as an insane person. He remained there under treatment until August 16 of that year when he was discharged as normal "for all intents and purposes."

Soon thereafter he consulted counsel, and on August 29, 1935, that counsel wrote a letter to the defendants' local agent informing him of the fire and requesting blanks for the purpose of filing a formal proof of loss. The defendants' agent admitted having received the above letter, but there is no evidence that it was ever answered.

It also appeared in evidence that on April 8, 1935, four days after the fire, the defendants' local agent gave them written notice of the loss on blanks provided by them for that purpose.

Both policies were written in the New Hampshire standard form and, in addition to including the provisions of P.L. c 276, as required by section 25 of that statute, contained a clause to the effect that: "In case of 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," etc.

At the close of all the plaintiff's evidence on the question of notice and the reasons for his noncompliance with the terms of the policies and with P.L. c. 276, § 9, a nonsuit was ordered in each case to which the plaintiff excepted.

All questions of law thereby raised were transferred by Young, J.

Willard Wight, of Littleton, and George W. Pike of Lisbon, for plaintiff.

John J. Moke, of Littleton, for Philadelphia Fire & Marine Ins. Co.

Thorp & Branch (Frederick W. Branch orally), of Manchester, for Mercantile Ins. Co. of America.

WOODBURY, Justice.

The provision of the standard form of fire insurance policy quoted above which requires that a signed and sworn statement or proof of loss be filed with the insurer forthwith after a fire is in conflict with P.L. c. 276, § 9, and compliance therewith is not essential to the maintenance of a suit upon the policy. Levi v. Insurance Co., 75 N.H. 551, 553, 78 A. 617, and cases cited.

The question remains, however, as to whether or not the plaintiff's insanity, if proved, would excuse him from giving the notice required by section 9 of chapter 276 of the Public Laws.

On the issue of the plaintiff's insanity, one of the doctors from the staff of the state hospital testified that in his opinion the plaintiff was insane when admitted to that institution, that thereafter his condition gradually improved, and that upon his discharge "he was normal enough to get around and look after his own business." He also testified that this change was "a gradual process," that it was "a matter of relativity," and that there was no precise time during his stay at the hospital when it could be said that "he went from an insane condition to a condition that you might ordinarily term normal." In addition, one of the doctors who committed the plaintiff to the state hospital testified to the effect that when he saw the plaintiff between one and two o'clock in the morning after the fire he was disheveled in appearance, that "his eyes were bloodshot as if he had been crying," and that he was in a "highly nervous state." This doctor also testified that the plaintiff's condition then was the same as it was during the evening of April 6, when he was committed to the hospital. The foregoing evidence is clearly sufficient to warrant the conclusion that the plaintiff was mentally unbalanced from a time almost immediately after the fire on April 4 until August 16, 1935.

It appears in the record that on April 9, 1935, the plaintiff wrote a letter to a friend requesting assistance in obtaining an early discharge from the hospital, and from this the defendants argue that if he could write this letter it could not be found that insanity was the cause of his failure to write to the defendants' agent giving him notice of the loss. This argument is without merit because the doctor from the staff of the state hospital referred to above testified that the plaintiff, owing to his mental condition, "was very dependant on us to arrange his outside affairs," and that his condition was such that it probably would not have occurred to him to write to the defendants regarding his loss. He also testified that although there was not necessarily anything irrational or indicative of insanity in the letter which he...