Epstein v. Northwestern National Insurance Co.
| Decision Date | 05 June 1929 |
| Citation | 267 Mass. 571 |
| Parties | ABRAHAM J. EPSTEIN v. NORTHWESTERN NATIONAL INSURANCE COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
February 27, 1929.
Present: RUGG, C.
J., CROSBY, PIERCE SANDERSON, & FIELD, JJ.
Insurance, Fire construction of policy, notice of loss, waiver of condition. Evidence, Relevancy and materiality. Waiver.
At the trial of an action upon a policy of fire insurance, there was evidence that the goods lost were in the basement of a large building numbered 50 Essex Street in Boston; that the plaintiff occupied premises both on the first floor and in the basement, the stockroom being in the basement; that the policy was in the Massachusetts standard form and was one of several issued to the plaintiff in renewal of previous policies; that the description clause read as follows, the italicized words being in handwriting: "On Stock in Trade and
Merchandise consisting principally of woolens . . . all while contained in and on a brick, concrete and steel building . . . situated
No. 50 Essex Street, Boston, Mass., 1st floor"; that the original policies, and part of the renewal policies did not include the words
"first floor"; that the rates of premiums were the same whether the policy covered the stock in trade on the first floor or on the first floor and basement; that the policies remained in the possession of the plaintiff's insurance broker without examination and without reading for over six months and until after the fire which caused the loss. The judge ordered a verdict for the defendant and the action was reported for determination by this court. Held, that
(1) Evidence that the rates were the same whether the policy covered the stock in trade on the first floor or on the first floor and basement was material and relevant upon the possible issue, whether the location of the stock in trade was an essential element in the description of the property intended to be insured;
(2) The retention of the renewal policy for over six months by the plaintiff's broker without examination and without reading precluded the plaintiff from contending that the words "first floor" therein should be rejected because they were improperly added or that they could be disregarded in the construction to be given to the descriptive terms of the insurance contract;
(3) Construing the descriptive terms and conditions of the policy most strongly against the defendant, the words, "situated No. 50 Essex
Street, Boston, Mass., 1st floor," presented a question for the jury, who, on the evidence, would have been warranted in finding that those words indicated the entrance to the premises and not the locus of the property to be covered by insurance.
At the trial of the action above described, it appeared that the fire occurred on July 3 and that no proof of loss was formally presented to the defendant until October 22; but, on evidence of negotiations of the parties in the interval, that the plaintiff furnished an extended inventory within ten days after the fire, that the defendant's representative did not raise any question as to the plaintiff's not having furnished formal proof but, asked by the plaintiff if anything else were wanted of him, declared, "that was about all," that on
October 21 the defendant denied liability only on the ground that the policy did not cover goods in the basement of the building, and that the next day the plaintiff sent a formal sworn statement of loss; and in the absence of evidence that no agent of the defendant had power to waive any term of the policy and particularly in the absence of evidence of a want of authority in the general agent to compromise or waive any disputed question of law or fact which might arise during the adjustment of a claim made against the defendant by one seeking to enforce alleged rights under a policy issued by the defendant, it was held, that a finding was warranted that the delay of the plaintiff in furnishing the sworn statement was induced by the action and declaration of the defendant's general agent, and that such conduct amounted to a waiver of the requirement of the policy that a sworn written statement be furnished forthwith.
CONTRACT upon a policy of fire insurance, described in the opinion. Writ dated January 15, 1926.
In the Superior Court, the action was tried before Flynn, J. Material evidence is stated in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant. After the death of the trial judge, the action was reported to this court by Cox, J., upon a stipulation by the parties that, if the case should have been submitted to the jury upon the competent and material evidence as set forth in the statement of evidence (no question of pleading or form being raised), judgment should be entered for the plaintiff in the sum of $1,176.23, plus interest; and, if the judge properly ordered the verdict for the defendant, it should stand.
The case was submitted on briefs. M.L. Orlov & P. Cowin, for the plaintiff.
W. Hartstone, for the defendant.
This is an action of contract to recover upon a fire insurance policy. The case comes before us on a report after a directed verdict for the defendant.
The facts, which the jury warrantably could have found supported the case of the plaintiff, are in substance as follows: The plaintiff, a woolen merchant, had occupied the premises wherein the fire occurred for three years prior to the date of the fire. The premises consisted of a stockroom and office. "The stockroom was in the basement and the office upstairs on the street floor." Access to the basement was by an uncovered stairway in the left corner of the store, guarded by a railing in full view from the store. The plaintiff's stock was kept in the stockroom; "the store was used for office purposes and just showing samples." These premises with an entrance through a doorway on the street floor numbered 50 Essex Street, Boston, were located in a large building that occupied the triangular lot at the corner of Chauncy Street and Essex Street and Harrison Avenue; the building had various entrances. A fire occurred on Friday, July 3, 1925, in the basement of the plaintiff's premises and the damage was confined to the merchandise therein.
At the time of the fire the plaintiff had eighteen policies covering the property contained in the building. The policy sued on, numbered 30517, was a Massachusetts standard form policy which was placed with R.S. Hoffman & Co., general agent of the defendant, by an insurance broker, one Isenberg. The descriptive clause relating to the property insured and to its location was set forth in a "rider" attached to the policy, the pertinent language of which reads [*]: "$3500 On Stock in Trade and Merchandise, consisting principally of woolens . . . all while contained in and on brick, concrete and steel building occupied at the time this policy is written wholly or principally for office and/or mercantile and/or manufacturing purposes with or without dwellings. situated No. 50 Essex Street, Boston, Mass., 1st floor." Of the eighteen policies covering the property of the plaintiff, ten in 1922 were placed by his insurance broker, one Isenberg. Five of the ten policies contained the words "first floor" in the description of the entrance to the building, and five of them did not. The rate per thousand on all ten policies was the same. The rates of insurance were the same whether the insurance covered merely the first floor or first floor and basement.
We do not agree with the contention of the defendant that it was...
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