Harnden v. Milwaukee Mechanics Ins. Co.
| Decision Date | 17 October 1895 |
| Citation | 164 Mass. 382,41 N.E. 658 |
| Parties | HARNDEN v. MILWAUKEE MECHANICS' INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Wm. H Niles and Geo. J. Carr, for plaintiff.
Hurlburt & McCarthy, for defendant.
The policy in this case provided that, "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," etc. The fire occurred on the 26th day of November, 1889. The first statement under the above provision was rendered in the latter part of January, 1890. It is contended that it was not rendered "forthwith." But we think that it was rightly left to the jury, with instructions to which we see no objection, to say whether under all of the circumstances, that was or was not done. The property described in the policy was situated in Lynn, and was destroyed in a great fire, which occurred on the date above stated. The fire was so extensive that it fairly may be presumed to have caused confusion, not only in the affairs of the plaintiff, but in those of the entire community. In such a state of things delay would naturally arise in relation to matters affecting insurance losses, and would make it impossible to render a statement forthwith in the sense of at once. Besides these considerations, there was testimony tending to show, among other things, that the plaintiff, by reason of impaired health, was unable to enter upon an examination of his affairs for upwards of three weeks; that he could not get at his books for a week; that he had to take an account of stock for three years, and it took two weeks to get at the footings; that it was customary to wait for the committee of adjusters to finish their work; and that, after the proofs of loss were prepared, they had to be, or were, printed, and he then swore to them, and gave them to the broker through whom the insurance was effected, who testified that he gave them, when ready, to Pitman & Breed. Whether the statement was "forthwith rendered" depended on whether, taking all of the circumstances and considerations into account, the plaintiff used due and reasonable diligence. If he did, then it was "forthwith rendered," within the fair meaning of the policy. And whether he did or did not was a question of fact for the jury. Carpenter v. Insurance Co., 135 N.Y. 298, 302, 31 N.E. 1015; Insurance Co. v. Davis, 98 Pa.St. 280; Edwards v. Insurance Co., 3 Gill, 176; Donahue v. Insurance Co., 56 Vt. 374. We think that there was testimony which justified the jury in finding, as they must have found, that the statement was "forthwith rendered."
Certain evidence was admitted, subject to the defendant's exception, on the question of the plaintiff's diligence in rendering the statement. Subsequently the defendant, reserving its rights only as to certain rulings which it had requested, and which the court had refused, agreed that, if the first proof of loss was delivered to Breed with a promise on his part that he would forward it, the jury might find for the plaintiff. Since the jury returned a verdict for the plaintiff, they must have found that the first proof of loss was delivered to Breed with a promise by him to forward it. And we think that the effect of this agreement and of the finding was to render immaterial the exceptions which had been taken regarding the admissibility of the evidence. It would seem as though counsel for the defendant did not care to argue that, under the circumstances, due diligence had not been used by the plaintiff in rendering the statement, if one was rendered the last of January, but preferred to rest on the contention that the first proof was not delivered to Breed at all.
The remaining question is whether the delivery of the statement or proof of loss in the latter part of January, 1890, to Pitman & Breed, the local agents of the company, constituted a delivery to the company. Under the instructions it is possible that, notwithstanding the testimony of Walton, the jury may have found that the proof was not only received by Breed,...
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