Greenough v. Phoenix Ins. Co. of Hartford

Decision Date24 June 1910
Citation92 N.E. 447,206 Mass. 247
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Hurlburt, Jones & Cabot and Charles M. Davenport, for plaintiff.

F. W Brown and W. L. Came, for defendants.



These are actions upon contracts of insurance in the Massachusetts standard form. The first defense put forward is that no statement in writing was furnished by the insured 'forthwith' as required by this clause of the policy '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, setting forth the value of the property insured, the interest of the insured therein, all other insurance thereon, in detail, the purposes for which and the persons by whom the building insured, or containing the property insured, was used, and the time at which and the manner in which the fire originated, so far as known to the insured.' Rev. Laws, c. 118, § 60. It may be noted in passing that the important change wronght in this clause by St. 1910, c. 552, has no bearing on these actions. The word 'forthwith' or other equivalent expression used in this connection has been frequently before the courts for interpretation. Harnden v. Milwaukee Mechanics' Ins. Co., 164 Mass. 382-384, 41 N.E. 658, 49 Am. St. Rep. 467; Mandell v. Fidelity & Casualty Co., 170 Mass. 173-177, 49 N.E. 110, 64 Am. St. Rep. 291; Smith & Dove Mfg. Co. v. Travelers' Ins. Co., 171 Mass. 357, 358, 50 N.E. 516; Parker v. Middlesex Mutual Assur. Co., 179 Mass. 528, 61 N.E. 215; Cook v. North British & Mercantile Ins. Co., 181 Mass. 101, 62 N.E. 1049; Id., 183 Mass. 50, 51, 66 N.E. 597; Fuller v. New York Fire Ins. Co., 184 Mass. 12-20, 67 N.E. 879; Smith v. Scottish Union & National Ins. Co., 200 Mass. 50-53, 85 N.E. 841, and cases cited; Bennett v. AEtna Ins. Co., 201 Mass. 554-556, 88 N.E. 335; Everson v. General Accident Fire & Life Ass'n Corp., 202 Mass. 169-174, 88 N.E. 658, and cases cited; Hughes v. Central Accident Ins. Co., 222 Pa. 462, 71 A. 923.

The result of these decisions is that, upon such a defense, the inquiry is whether in the light of conditions surrounding the insured at the time when he was bound to act, considered as they then should have been by an ordinarily prudent man, he exercised reasonable diligence in rendering the written statement to the insurer without unnecessary delay. An insured, who has suffered loss, may properly take a few days in order to acquire the knowledge necessary intelligently to prepare a statement, adequate both to give some reliable data to the insurers and to protect his own rights in the future. The time required for this purpose must vary with the character and extent of the property injured, the intimacy of the relation of the owner to it and the circumstances peculiar or personal to himself in which at the monent he may be placed. What may be forthwith in any case depends upon a due regard to all these considerations. This provision of the contract is presoribed by the statute, has been entered into by the parties and must be performed unless there is something in the words or conduct of the insurer, which either partially or wholly excuses the insured from compliance. There may be negotiations for a settlement of the loss of such a tenor or occurring so soon after the fire, or under such surroundings, as amount to a waiver for the time being of the right of the insurer to require the statement forthwith, and as to make it a breach of good faith for it to set up as a defense failure immediately to furnish the statement. Facts may be found to exist equivalent to a representation by the insurer to the effect that the right to require the written statement, while not abandoned, would be treated as suspended until the termination of efforts at compromise.

The fire by which the plaintiff suffered loss occurred on December 12th in a small country town. The property was a pickle factory. There was evidence which would support a finding that within two days after the fire the secretary of one of the defendants came to the plaintiff, appearing to represent both the mutual companies, talked over with him the subject of the loss, and, about a week after the fire (or perhaps two weeks, the evidence upon this point not being definite), representatives of all the defendants empowered to adjust the loss having given previous notice of their coming to the plaintiff, visited the premises and remained there several hours; they were accompanied by a carpenter, who conferred with them from time to time and made measurements of the injured buildings, and they made several propositions to the plaintiff in an ineffectual endeavor to adjust the loss. On the day after this, due statements were made, which were received by each of the defendants 16 days after the fire. Early in the following January, there was another meeting between the plaintiff and several adjusters who had authority to represent all the defendants, at which a further attempt was made to settle the loss. During this interview one of the adjusters, who acted as spokesman for all, said without dissent by any of them that 'they had received the...

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