Boruszewski v. Middlesex Mut. Assur. Co.

• Decision Date: 22 November 1904
• Citation: 72 N.E. 250,186 Mass. 589
• Parties: BORUSZEWSKI et al. v. MIDDLESEX MUT. ASSUR. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 589

72 N.E. 250

BORUSZEWSKI et al. v. MIDDLESEX MUT. ASSUR. CO.

Supreme Judicial Court of Massachusetts, Worcester.

November 22, 1904

COUNSEL

John R. Thayer, Arthur P. Rugg, and Henry H. Thayer, for plaintiffs.

Fredk. W. Brown, for defendant.

OPINION

LORING, J.

This is an action on a policy issued by the defendant company insuring the plaintiffs against loss by fire upon a dwelling house and barn, and certain personal property contained therein. The defense is that the plaintiffs never have rendered the sworn statement in writing called for by the policy. The plaintiffs' contention is that this has been waived by the defendant, and that they proved a custom making it unnecessary. The case is here on a report by the presiding judge, who directed the jury to return a verdict for the defendant.

The facts relied on by the plaintiffs as constituting a waiver are that the defendant, on receiving an informal notice of the fire, sent an adjuster to Webster, where the property insured was situated. The adjuster notified the broker who placed the insurance that he was coming. The broker met him at the station, and had a talk with him there about the loss. The broker then told him that he had just driven the adjuster of another company to the locus, and that the other adjuster had just left. The defendant's adjuster asked why he had not waited for him. The broker then asked him to go to his office, where he said he had a 'proof of loss,' but the adjuster refused. He also refused to visit the place of the fire, although the broker offered to 'carry him out.' He said that he did not want to attend to it that day, as he was anxious to go to Hartford, but told the broker that he would see him or communicate with him in a short time. He left on a train a few minutes later. Nothing was done on the part of either party until nearly five months later, when the plaintiffs retained counsel. In answer to a letter from counsel not put in evidence, the president of the defendant company wrote, stating that their adjuster learned facts when he visited the scene immediately after the fire indicating that the fire was not an honest one; that the fire marshal had written to the same effect after making an investigation; and insisting that the plain provisions of the policy had not been complied with since the fire. The letter ended with a statement that the company supposed the plaintiffs had failed to comply with the essential conditions through consciousness of wrongdoing.

The question is whether there is anything in this which amounts to a waiver of performance of the clause of the policy requiring the insured, in case of a fire, to render forthwith a sworn statement in writing, giving (1) the value of the property insured; (2) the interest of the insured in that property; (3) all other assurance on it; (4) the purposes for which, and the person by whom, the buildings in question were used; and (5) the time and manner in which the fire originated, so far as known. By the terms of the policy, the insurance money due is payable 60 days after this statement is rendered. The performance of this clause is a condition precedent to the defendant's liability. Cook v. North British & Mercantile Ins. Co., 183 Mass. 50, 66 N.E 597; Parker v. Middlesex Co., 179 Mass. 528, 61 N.E. 215. See, also, Audette v. L'Union St. Joseph, 178 Mass. 113, 59 N.E. 268; Smith & Dove Mfg. Co. v. Travelers' Ins. Co., 171 Mass. 357, 50 N.E. 516; Johnson v. Phoenix Ins. Co., 112 Mass. 49, 17 Am. Rep. 65; Smith v. Haverhill Ins. Co., 1 Allen, 297, 79 Am. Dec. 733; Shawmut Sugar Refining Co. v. People's Ins. Co., 12 Gray, 535. The rendering of this statement is the first step called for by the policy, to be taken by the insured in case of a loss. On such a sworn statement being made and delivered to the company, it is its duty to decide whether it will pay the loss, and to determine the amount due. If the amount of damage done is not agreed upon, it is fixed by arbitration. In either event the amount due becomes payable 60 days after the sworn statement is rendered to the company.

The nearest case in this commonwealth is the case of Searle v. Dwelling House Ins. Co., 152 Mass. 263, 25 N.E. 290. In that case, on receiving informal notice that there had been a fire, the company sent an adjuster to agree on the amount of the loss; understanding that he carried with him blanks on which a proof of loss was to be made in accordance with the adjustment reached, The agent agreed with the insured upon the amount of the loss, item by item, and that was written down. He then told the insured that he would write it out on a proper blank, and send it to her to be signed and sworn to. The insured heard nothing from the adjuster or the company for some three or four weeks. She then went to the local agent who issued the policy, and he wrote to the company in her behalf. In answer the company refused to pay the loss on another ground. This was held to justify a finding that the presentation of the sworn statement had been waived. In that case the fire took place on October 11, 1885. On May 27, 1886, a sworn statement was rendered. The court ruled that this sworn statement was rendered too late to be a compliance with the policy, and left the case to the jury on the question of waiver. The ground on which this case goes was that the action of the company was inconsistent with an intention to insist on a sworn statement being rendered. For another case where the rendering of a sworn statement was waived altogether, see Eastern Railroad v. Relief Ins. Co., 105 Mass. 574. But in the case at bar there was nothing in what the defendant did inconsistent with an intention to insist on a full compliance with this clause of the policy. Until a sworn statement containing the information called for is rendered, the company is under no duty to take up the question of adjustment of the loss. Before proceeding with the adjustment of a loss, an insurance company, under the Massachusetts standard form of policy, has the right to have the insured commit himself, in writing and under oath, upon the facts to be set forth in the sworn statement, namely, (1) the property covered by the policy in existence at the...