Butterworth v. Western Assurance Co.
| Decision Date | 04 April 1882 |
| Citation | 132 Mass. 489 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Henry L. Butterworth & another v. Western Assurance Company. Same v. German American Insurance Company |
Argued October 5, 1881
Worcester. Two actions of contract upon policies of insurance on machinery, fixtures, stock and furniture in a building occupied by the plaintiffs for the manufacture of boots and shoes in East Brookfield. The cases were tried together in this court, before Lord, J., who ordered a verdict for the plaintiff in each case; and reported the cases for the determination of the full court. If the rulings were correct judgments were to be entered on the verdicts; otherwise, the verdicts were to be set aside or modified, or such order entered as the court might determine. The facts appear in the opinion.
Judgments on the verdicts.
G. F Hoar & F. P. Goulding, for the defendants.
G. F. Verry & F. A. Gaskill, for the plaintiffs.
The court is of opinion that none of the reasons assigned by the defendants furnish sufficient grounds for setting aside the verdict in either of these cases.
1. The demurrer to the second count of the declaration as it stood after the final amendment was properly overruled. It is not necessary to set out a copy of the policy. In each case the declaration alleges that the defendant made to the plaintiffs a policy of insurance, and then sets out its legal effect in terms which, if supported by proofs, would entitle the plaintiffs to recover. The objection which the defendant makes to it is, that it does not allege with certainty the amount which the defendant was bound to pay to the plaintiffs. The declaration alleges upon this point that the defendant "was bound by the terms of said policy to pay the plaintiffs a proportionate share, as hereinafter set forth, of said loss;" it then proceeds to allege that at the time of the loss the plaintiffs held certain other policies of insurance upon the property destroyed, naming the several companies which issued the policies, "amounting in the aggregate, including the policy issued by the defendant corporation, to the sum of $ 39,500, and the said insurance companies were liable to the plaintiffs under said policies for such portion of the loss sustained as the sum insured by each of said companies bore to the whole amount insured by all of said companies thereon, and the defendant corporation was liable for and bound to pay the plaintiffs its said proportionate share, to wit, $ 2250." The defendants' argument is, that, in this allegation, the words "and the said insurance companies were liable to the plaintiffs under said policies" apply only to the other insurance companies, and not to the insurance company against which the declaration is made, so that it does not allege what proportionate share the defendant in each case is bound to pay. But this is not the fair construction of the declaration. By "the said insurance companies," the plaintiffs clearly mean all the companies in which insurance has been effected, including the defendant corporation. Taking the whole count together, it alleges with sufficient clearness that the liability of the defendant in each case is to pay the proportionate share of the whole loss which the sum insured by it bears to the whole amount insured by all the companies. The fact that it is alleged under a videlicet that such proportion amounts to a sum equal to the whole amount insured by the defendant company, is immaterial. The precise amount insured may be the precise amount of the proportion of each; as for instance, if, as is alleged in this declaration, the whole loss was exactly equal to the whole amount insured.
2. The defendants' motion to recommit the auditor's report was addressed to the discretion of the court, and the decision thereon is not open to exception. Packard v. Reynolds, 100 Mass. 153. Kendall v. Weaver, 1 Allen 277.
3. Without considering whether the preliminary proofs of loss furnished by the plaintiffs were in all respects sufficient, it is enough to say that there was evidence to justify the jury in finding a waiver of all informalities and insufficiency, if any existed.
The loss occurred on February 4, 1878. Proofs of loss were sent to each company before February 18, 1878. They were received by the companies, and no objection was made to their sufficiency. During the same month of February, the plaintiffs and the agents of the several companies met and agreed upon an adjustment of the loss. The companies afterwards repudiated this adjustment, on the ground that the agents had no authority to make it, and wrote to the plaintiffs refusing to pay "your claim at the maturity of the sixty days from the presentation of your formal proofs of loss," and offering to meet the plaintiffs with a view "to explain our position...
To continue reading
Request your trial
-
Interstate Const. Co. v. Lakeview Canal Co.
... ... Sweeney, (Ind.) 111 N.E. 305; Cook v. Hogedorn, ... (Ind.) 131 N.E. 788; Butterworth v. Co., 132 ... Mass. 489; West Rockingham Co. v. Sheets, 26 Grat ... (Va.) 854; Nickle v. Co., ... 1157; Buhler vs. E. T ... Burrowes Co. (Tex. Civ. App.) 171 S.W. 791; Alabama ... Western R. Co. vs. Talley-Bates Constr. Co., 162 Ala ... 396, 50 So. 341; Citizens National Bank vs ... ...
-
Cont'l Life Ins. Co. v. Rogers
...were made in accordance with the requirements of the policy, and the allegations in the plaintiff's declaration. Butterworth v. Western Assur. Co., 132 Mass. 489, 492;Pennsylvania Fire Ins. Co. v. Dougherty, 102 Pa. St. 568; Ben Franklin Ins. Co. v. Flynn, 98 Pa. St. 627, 636; Daul v. Insur......
-
Chaffee v. Middlesex R. Co.
... ... presentation was too late. Butterworth v. Assurance ... Co., 132 Mass. 489; Mexal v. Dearborn, 12 Gray, ... 338; Everett v. Saltus, ... ...
- Chi., R. I. & P. R. Co. v. Jackson