Hannuniemi v. Carruth

Decision Date26 January 1932
Citation278 Mass. 230
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesJOHN HANNUNIEMI v. DAVID v. CARRUTH & another.

January 8, 1932.

Present: RUGG, C.

J., CROSBY, WAIT SANDERSON, & FIELD, JJ.

Insurance, Fire notice, sworn statement.

Findings by a judge, hearing an action of contract without a jury, resting in large part upon the oral testimony of witnesses, must be accepted as final if there is any evidence to support them.

At the hearing by a judge without a jury of an action of contract upon a policy of insurance against loss by fire issued to the plaintiff on May

23, it appeared that the loss occurred on May 25, that on the following day the plaintiff went to the office of an authorized local agent of the defendant and orally notified him of the fire, that thereupon the plaintiff retained an attorney at law to handle the matter for him and that the only written notice of the fire given to the company by the plaintiff was by a letter sent on July 5. The judge found on evidence warranting the finding that in "the circumstances of this case due diligence was not used to send such notice with reasonable promptness and that there was nothing to excuse the plaintiff for failure to send the notice before July 5"; that there was no waiver by the company of the giving of this notice; that the sworn statement required by the standard form of policy to be forthwith rendered to the company was not rendered until January 5; that there "were no circumstances excusing the delay and no waiver by the company of the above requirements"; and that he was unable to find that the company placed its refusal to pay on any other grounds than the plaintiff's failure to comply with the terms of the

policy. There was a general finding for the defendant.

On exceptions by the plaintiff, it was held, that

(1) The notice given on July 5 was not given forthwith; (2) Whether there was a waiver of the requirement as to notice was a question of fact, with the burden of proof on the plaintiff to prove such waiver;

(3) There was no error in the finding.

CONTRACT OR TORT. Writ dated September 6, 1930. In the Superior Court, the action was heard by F.T. Hammond, J., without a jury. Material findings by the judge are stated in the opinion. The plaintiff alleged exceptions.

The case was submitted on briefs. H.R. Sher, for the plaintiff.

B.A. Brickley &amp H.W. Cole, for the defendants.

RUGG, C.J. This action of contract was commenced against the first named defendant, an insurance agent, and two insurance companies. The action was discontinued against one insurance company and is prosecuted against the other two defendants, who hereafter will be termed respectively the agent and the company. The trial judge found that a policy of fire insurance on certain personal property was executed in the name of the plaintiff and went into effect and was paid for on May 23, 1929. It must be assumed for the purposes of this decision that that finding was warranted because that question is not raised on this record. There was evidence tending to show that the insured property of the plaintiff was damaged by fire two days later on May 25, 1929; that on the following day the plaintiff went to the office of the agent and orally notified him of the fire and thereupon the plaintiff retained an attorney at law to handle the matter for him. The trial judge found that the only written notice of the fire given to the company by the plaintiff was by letter sent on July 5, 1929 and that in "the circumstances of this case due diligence was not used to send such notice with reasonable promptness and that there was nothing to excuse the plaintiff for failure to send the notice before July 5, 1929" that there was no waiver by the company of the giving of this notice; that the sworn statement required by the standard form of policy to be forthwith rendered to the company ("setting forth the value of the property insured, the interest of the insured therein, all other insurance...

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7 cases
  • Phelan v. New Amsterdam Casualty Co., 2318.
    • United States
    • U.S. District Court — District of Wyoming
    • January 16, 1934
    ...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, 278 Mass. 230, 179 N. E. 597, and cases In Gifford v. New Amsterdam Casualty Co. (Iowa) 248 N. W. 235, at page 236, is the following language: "That no......
  • Depot Cafe, Inc. v. Century Idemnity Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 8, 1947
    ...Co., 278 Mass. 596, 599, 180 N.E. 617. See also Nichols v. Continental Ins. Co. 265 Mass. 509, 511, 164 N.E. 442;Hannuniemi v. Carruth, 278 Mass. 230, 232, 179 N.E. 597. There is nothing in the evidence to warrant a finding that the defendant had waived any of the conditions of the policy. ......
  • French King Realty Inc.1 v. Interstate Fire
    • United States
    • Appeals Court of Massachusetts
    • June 9, 2011
    ...pleading and proving either satisfaction of policy obligations or waiver of them by an insurer is on the insured. Hannuniemi v. Carruth, 278 Mass. 230, 232, 179 N.E. 597 (1932). Even though the defendant apparently agreed to insure French King's dry fire suppression system, the defendant ne......
  • Segal v. Aetna Cas. & Sur. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 7, 1958
    ...after she had knowledge of the accident. Nichols v. Continental Ins. Co., 265 Mass. 509, 511, 164 N.E. 442; Hannuniemi v. Carruth, 278 Mass. 230, 232, 179 N.E. 597; Friedman v. Orient Ins. Co., 278 Mass. 596, 599, 180 N.E. 617; Depot Cafe, Inc., v. Century Indemnity Co., 321 Mass. 220, 223,......
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