Harwood v. United States Fire Ins. Co.

• Decision Date: 29 July 1939
• Citation: 7 A.2d 899
• Parties: HARWOOD v. UNITED STATES FIRE INS. CO.
• Court: Maine Supreme Court

7 A.2d 899

HARWOOD

v. UNITED STATES FIRE INS. CO.

Supreme Judicial Court of Maine.

July 29, 1939.

Exceptions from Superior Court, Kennebec County.

Action on fire policy by Edith L. Harwood against the United States Fire Insurance Company. On exceptions by defendant to acceptance of a report of referee for plaintiff.

Exceptions overruled.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, and MANSER, JJ.

McLean, Fogg & Southard, of Augusta, for plaintiff.

Berman & Berman, of Lewiston, for defendant.

MANSER, Justice.

This case comes up on exceptions by defendant to the acceptance of the report of a referee. The finding was for the plaintiff in the sum of $805.20 with interest. The action is based on a fire insurance policy and arose by reason of a loss occasioned by fire which occurred in the forenoon of May 4, 1938. The plaintiff and her family were living in the insured premises. The policy coverage was $400 on the house, $100 on a shed, and $300 on household goods and effects. The fire entirely consumed the buildings and but a few articles of furniture were salvaged. Many defenses were alleged in the pleadings, but the issues before the referee were narrowed to two contentions by the defendant:

1. Noncompliance with the policy provision as to arbitration of the amount of the loss.

2. Fraudulent overvaluation of the personal property in the plaintiff's proof of loss.

No arbitration as to damages sustained was undertaken, but the referee ruled that the application of the principles of both waiver and estoppel operated against the defendant and in favor of the plaintiff on this issue.

The referee further found that the defendant failed to establish fraudulent overvaluation of the personal property in the plaintiff's proof of loss.

It is only to rulings of law that exceptions can be taken as to findings of a referee. There being no express waiver, the question as to waiver by conduct is one of fact. Jewett v. Quincy Mut. Fire Ins. Co., 125 Me. 234, 132 A. 523; Robinson v. Pennsylvania Fire Ins. Co., 90 Me. 385, 38 A. 320; Houlton Trust Co. v. Lumbert, 136 Me. —, 5 A.2d 921. On questions of fact the findings of a referee are upheld when supported by any credible evidence. Wentworth v. Whitney, 133 Me. 513, 174 A. 461; Throumoulos v. First Nat. Bank of Biddeford, 132 Me. 232, 169 A. 307; Bourisk v. Mohican Co., 133 Me. 207, 175 A. 345; Poirier v. Venus Shoe Mfg. Co., 136 Me. 100, 3 A.2d 116. The only issue therefore presented is whether under these rules the record justifies the findings. It does so abundantly. It demonstrates that the buildings were entirely destroyed, and that the loss by reason of such destruction was at least equal to the amount of insurance placed by the defendant thereon. Liability for loss of the buildings cannot be denied unless it be by failure of arbitration to prove such admitted loss and the loss upon the personal property, or by forfeiture and avoidance of the entire policy by reason of fraudulent overvaluation of such personal property.

One H. A. Marston was the agent of the defendant company who effected the insurance. It is definitely shown that he came within the statutory provision of R. S. Ch. 60, Sec. 119, and must "be regarded as in the place of the company in all respects regarding any insurance effected by them." So far as the plaintiff was concerned, he was the Company and his knowledge was that of the Company. Bradbury v. Insurance Co., 119 Me. 417, 111 A. 609. He told the plaintiff that he knew she had sustained a total loss and testified that at the time of the fire "while I was visiting the remains, I told them an adjuster would adjust the loss. When the adjustment was made, it would be necessary for them to wait forty-five days from the time of filing the proof of loss before the money would be paid." He also testified in substance that he knew the loss in each of the insured classifications was greater than the amount of insurance. No suggestion so far of any need of a determination by arbitrators as to the amount of the loss.

The agent, years before, had furnished the plaintiff with a book suitable for the purpose of keeping an inventory or schedule of the insured personal property, the time when bought and its cost price. At his suggestion, the items of chattels were entered in the book with the additions made from time to time. This book was taken to him and forwarded to the company's adjuster. The plaintiff having been informed that the "adjuster would adjust the loss", that impression was undoubtedly deepened by a letter from the adjuster notifying the plaintiff of the requirement of a formal proof of loss "in order that I may be able to appraise the value of the various articles at the time of the fire." Such proof was made with the assistance of the agent and his clerk, and forwarded to the adjuster, from whom no reply was received. The policy, in...