Jiannetti v. Nat'l Fire Ins. Co. of Hartford

• Decision Date: 04 December 1931
• Parties: JIANNETTI v. NATIONAL FIRE INS. CO. OF HARTFORD, CONN. SAME v. SCOTTISH UNION & NATIONAL INS. CO. OF EDINBURGH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 434

178 N.E. 640

JIANNETTI

v.NATIONAL FIRE INS. CO. OF HARTFORD, CONN.

SAME

v.SCOTTISH UNION & NATIONAL INS. CO. OF EDINBURGH.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 4, 1931.

Exceptions from Superior Court, Suffolk County; Frederic B. Greenhalge, Judge.

Separate actions by Vincent Jiannetti against the National Fire Insurance Company of Hartford, Conn., and against the Scottish Union & National Insurance Company of Edinburgh. Judgments for plaintiff. On defendant's exceptions.

Exceptions overruled.

C. D. Driscoll, of Boston, for plaintiff.

R. J. Walsh, of Boston, for defendants.

PIERCE, J.

These are two actions of contract brought by the plaintiff against each of the two defendants upon concurrent policies of the Massachusetts standard form (G. L. c. 175, § 99), insuring the merchandise, goods, stock in trade and fixtures of the plaintiff in the premises numbered 1678 Commonwealth Avenue, in Boston, against loss by fire for a year from December 29, 1929. The policies were payable in case of loss to the plaintiff. The cases were tried together, and as the issues are the same in both cases the exceptions have been consolidated.

The bill of exceptions contains all the evidence material to the issues raised. No copy of the policies is annexed to the bill of exceptions, but the defendants, under leave reserved in the bill of exceptions, quote in their brief that portion of the policy which in the standard form of policy reads: ‘If the insured property shall be exposed to loss or damage by fire, the insured shall make all reasonable exertions to save and protect the same.’

The record discloses the undisputed facts which follow: On February 27, 1930, the plaintiff was occupying the premises at No. 1678 Commonwealth Avenue, referred to in the policies, under a written lease and was conducting a dress shop therein. The building in which the dress shop was located was a one-story building consisting of five stores: a drug store, a tailor shop, a butcher shop, a chain store and the dress shop. On Thursday, February 27, 1930, at about two o'clock in the morning, a fire occurred in the butcher shop located at No. 1672 Commonwealth Avenue, two stores away from the plaintiff's shop, and smoke came into the premises ocupied by the plaintiff. There was no fire in the premises of the plaintiff nor any water there from the city supply or from any source used by the fire department.

At about 2 a. m. in response to a telephone call, the plaintiff went to the dress shop with his wife, and on his arrival found there a fireman and a police officer. He further saw two or three firemen go on the roof of his shop. There was smoke in the shop when he entered and ‘he noticed that the skylight on the premises at 1678 Commonwealth Avenue had been removed’ and that ‘it was off.’ The skylight was four feet long and two and one-half feet wide, made on a metal frame with glass inserted in the frame for the purpose of giving light. There was a flange six inches deep on the skylight. There was an opening in the roof approximately four feet long and two and one-half feet wide and at the outer edge of the opening in the roof and following the entire distance around it was a raised lip approximately six inches high over which the skylight fitted. When the plaintiff arrived at his shop ‘he found no water damage * * * but he did find some smoke damage.’ He ‘remained in the store for about one hour’ and ‘While * * * [he] was on the premises he heard a grating noise as the skylight cover went back on,’ but did not pay any attention to the skylight or look at it until March 3, the Monday following February 27, 1930, when he returned to the premises.

The plaintiff's wife returned to the store on February 28, and again the next day. She saw nothing unusual about the premises except that there was some smoke; she did not look at the skylight. On Sunday, March 2, there was a rain storm. On March 3, the wife returned to the premises and found a ‘lot of water on the floor, a lot of water on the dress cases and a lot of water all through the dresses. There was a space under the skylight about three-quarters of an inch high on the right side of the skylight as you come in the door. You could see the water dripping down.’ She telephoned the owner of the premises and on the same morning a contractor for the owner “went up on the roof and made as much noise to put it back' (the skylight). A lot of plaster came down. The water had been turned off in the store from the date of the fire until about March 25, 1930.'

Lieutenant McTernan of the Boston protective department, a witness called for the plaintiff, testified that he covered the fire and forced the rear door of the plaintiff's premises to get in; that he remained on the roof long enough to look at the skylight that the fire department had taken off; that he knew nothing about taking the skylight off but detailed three men to go up on the roof and take care of the roof, and gave them instructions to put the skylight on and cover things up. Three members of the Boston protective department, one as witness for the plaintiff and two as witnesses for the defendant, testified ‘that they went up on the roof of 1678 Commonwealth Avenue, that they were equipped with two lights, one being a lantern and the other being a presto light which shed a bright light. The lantern had a red globe. The presto light was a white light. The presto light was focused on the flanges of the skylight as it went on. Two of the Protective Department men picked up the skylight cover, one being at each end of it, and the third man guided the cover onto the flange. After the skylight had...