Cyprinski v. Phoenix Ins. Co.

• Decision Date: 08 January 1932
• Citation: 179 N.E. 236,278 Mass. 79
• Parties: CYPRINSKI v. PHOENIX INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 79

179 N.E. 236

CYPRINSKI

v.PHOENIX INS. CO.

Supreme Judicial Court of Massachusetts, Hampshire.

Jan. 8, 1932.

Exceptions from Superior Court, Hampshire County; W. A. Burns, Judge.

Action by Isabel Cyprinski against the Phoenix Insurance Company. Defendant's motion for a directed verdict was granted, and plaintiff brings exceptions.

Judgment for plaintiff.

D. H. Keedy, of Springfield, and J. T. Storrs, of Ware, for plaintiff.

H. P. Small, of Springfield, for defendant.

CROSBY, J.

This is an action brought to recover on a policy of fire insurance in the Massachusetts standard form. The policy was dated January 17, 1929, for a term of three years, and covered the plaintiff's household furniture and personal property, in the sum of $3,000, in a dwelling house in Ware. On July 3, 1929, a fire occurred upon the premises where the property was located. On the day of the fire the plaintiff saw one Davis, an insurance agent from whom she had obtained the policy, and notified him of the fire. He assured her that he would report it for her to the defendant, and on the same day he sent a written notice of loss which was received by the defendant on the following day. On July 9, 1929, one McCoy, an insurance adjuster who represented the defendant, signed, and on the defendant's behalf delivered to the plaintiff, a written instrument entitled ‘Non-Waiver Agreement.’ It contained the following statement: ‘Sworn statement as required under policy conditions is hereby demanded.’ This agreement was not signed by the plaintiff to be delivered to the defendant until December 5, 1929, but on October 14, 1929, the defendant received the requested sworn statement. On December 9, 1929, the plaintiff and the defendant entered into a written agreement entitled ‘Adjuster's Agreement’ by which it was mutually agreed that the plaintiff's loss and damage amounted to $1,298.02.

At the close of the evidence the defendant filed a motion that the jury be instructed to return a verdict in its favor on the grounds that (1) ‘Upon all the evidence the plaintiff is not entitled to recover,’ and (2) ‘Upon all the evidence and the law the plaintiff is not entitled to recover.’ The motion was granted and the plaintiff excepted.

The standard form of fire insurance policy as prescribed by G. L. c. 175, § 99 provides, in part, as follows: ‘In case of any loss or damage under this policy, a statement in writing, signed and sworn to by the insured, shall be forthwith rendered to the company. * * *’ It is the contention of the defendant that the verdict was rightly directed in its favor on the ground that the sworn statement was not sent ‘forthwith.’ If nothing else appeared, it is plain that a delay of more than three months in submitting to the defendant such sworn statement would be fatal to the plaintiff's case. Parker v. Middlesex Mutual Assurance Co., 179 Mass. 528, 61 N. E. 215;Cook v. North British & Mercantile Ins. Co., 181 Mass. 101, 62 N. E. 1049.Bennett v. AEtna Ins. Co., 201 Mass. 554, 88 N. E. 335,131 Am. St. Rep. 414. It is provided, however, by G. L. c. 175, § 102, that ‘in case of loss under any fire insurance policy in the standard form prescribed...