Friedman v. Orient Ins. Co.

• Decision Date: 31 March 1932
• Citation: 278 Mass. 596,180 N.E. 617
• Parties: FRIEDMAN v. ORIENT INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 596

180 N.E. 617

FRIEDMAN

v.ORIENT INS. CO.

Supreme Judicial Court of Massachusetts, Worcester.

March 31, 1932.

Report from Superior Court, Worcester County; J. J. Burns, Judge.

Action by Eugene Friedman against the Orient Insurance Company. Verdict for defendant. On report from the superior court.

Judgment on verdict for defendant.

George R. Stobbs, Harold H. Hartwell, and Loue E. Stockwell, all of Worcester, for plaintiff.

Rufus B. Dodge and Amos T. Saunders, both of Worcester, for defendant.

FIELD. J.

This is an action of contract to recover for the theft of an automobile under an insurance policy insuring against such theft. The declaration alleged issuance of the policy, a copy of which is annexed, theft of the automobile, compliance by the plaintiff with the terms of the policy, demand by the plaintiff for payment and refusal by the defendant. Waiver of compliance with the terms of the policy was not alleged. The answer was a general denial.

At the trial it was admitted that the policy in question, which was in evidence, was a valid policy issued by the defendant. There was evidence that it took effect at noon, October 15, 1928, and that the theft occurred an hour and a half later. The policy provides that ‘no officer, agent or other representative of * * * [the defendant] shall have power to waive any of the terms of this policy unless such waiver be written upon or attached hereto,’ that ‘in the event of loss or damage * * * the Assured shall give immediate notice thereof in writing to * * * [the defendant,] give immediate notice thereof to the Police,’ and within sixty days after loss or damage, unless the time is extended in writing, furnish sworn proof of loss, and that no action on the policy shall be sustainable unless the assured has fully complied with these and other requirements.

There was evidence that the plaintiff's broker who had placed the policy with the defendant's agent went to that agent's office a week after the loss and told a clerk in that office that the car had been stolen on October 15, 1928. The clerk testified ‘that she reported the information the Broker had given her to Mr. Burnham and that it was his custom to report to the defendant company.’ A letter dated November 28, 1928, from counsel for the plaintiff addressed to the defendant was introduced. It stated that ‘Eugene Friedman of this city has spoken to us in connection with damage to his Peerless sedan which was stolen on October 15, 1928 arising through policy with your company numbered 109455. Will you please take this up with us immediately and if proper notices have not been given in connection with the loss notify us to that effect.’ A letter dated December 20, 1928, addressed to counsel for the plaintiff and purporting to be signed by the defendant was admitted in evidence subject to the defendant's exception. Therein receipt of the letter of November 28, and of a letter of December 12 was acknowledged and it was stated that ‘according to the advices that have come to us, Mr. Friedman's broker after it was reported to him that the car was stolen, applied to our agents for insurance on the car without disclosing the fact that the car had been stolen, and our agents issued policy 109455. In the circumstances we have taken the position that there is no liability on the part of this company because our policy was not in effect when the car was stolen.’ The report states that there ‘was no other evidence to show notice of loss to the defendant, proof of loss, appraisal, or waiver of such provisions.’

The defendant moved for a directed verdict ‘upon the pleadings and the evidence.’ The motion was granted, subject to the plaintiff's exception, and the case reported upon an agreement of the parties that if the verdict should not have been directed judgment should be entered for the plaintiff in the sum of $400.

The verdict was directed rightly.

Immediate notice of the loss in writing, required by the terms of the contract, was a condition precedent to recoveryin this action. The burden of proving performance, or excuse for nonperformance, was on the plaintiff. Hatch v. United States Casualty Co., 197 Mass. 101, 105, 106, 83 N. E. 398,14 L. R. A. (N. S.) 503, 125 Am. St. Rep. 332,14 Ann. Cas. 290;McCarthy v. Rendle, 230 Mass. 35, 119 N. E. 188, L. R. A. 1918E, 111;Wilcox v. Massachusetts Protective Association, Inc., 266 Mass. 230, 165 N. E. 429;Vasaris v. National Liberty Ins. Co. of America, 272 Mass. 62, 66, 172 N. E. 99;Hannuniemi v. Carruth (Mass.) 179 N. E. 597, and cases cited.

The evidence did not show that immediate notice in writing of the loss was given. It did not appear that the notice given to the defendant's agent a week after the theft was in writing. There was no evidence of any written notice of loss having been given prior to the letter of November 28, 1928, from the plaintiff's counsel to the defendant. Doubtless the meaning of ‘immediate’ in the policy depends upon the circumstances of the case. However, it implies nothing less than due diligence on the part of the plaintiff to act with reasonable promptness in those circumstances (Everson v. General Accident Fire & Life Assurance Corp., Ltd., 202...