Lohnes v. Insurance Co. of North America

• Decision Date: 08 January 1877
• Citation: 121 Mass. 439
• Parties: Abraham S. Lohnes v. Insurance Company of North America
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 439

Abraham S. Lohnes v. Insurance Company of North America

Supreme Court of Massachusetts

January 8, 1877

Argued November 8, 1876

Essex. Contract upon a policy of insurance against fire. At the trial in the Superior Court, before Aldrich, J., it was admitted by the defendant that the property described in the policy was destroyed by fire. It was admitted by the plaintiff that he did not furnish the defendant with formal proof of the loss as required by the terms of the policy, and that he could not maintain his action unless he proved a waiver by the defendant of that part of the policy requiring such formal proof.

The plaintiff testified that he employed Samuel S. Trefry to obtain insurance for him in the defendant company, and that after the fire he applied to Trefry, and subsequently to William Northey, the agent of the defendant, at Salem, for a blank proof of loss, and that Northey promised to send him one at Marblehead, where the plaintiff resided at the time and where the property insured was situated, but that no such blank proof was sent or furnished to him.

Trefry testified that he was an insurance agent and broker in Marblehead, and that he obtained the insurance in question for the plaintiff, through William Archer, who was then the agent of the defendant at Salem; that he knew Archer and had dealings with him as the agent of the defendant, and that Archer received applications for insurance, took risks, and settled rates of premium and issued policies for the defendant. He also testified that he examined the property after the fire, and notified Archer of the loss, and that Archer said he would write to the company. Trefry further testified that he acted as a broker, and was not an agent of the defendant, but that he was paid for his services by receiving a percentage of the premium paid by the plaintiff.

A witness called by the plaintiff testified that he acted as counsel for the plaintiff in the matter of collecting his insurance of the defendant, and also in the criminal proceedings which had been instituted against the plaintiff upon a charge of having set fire to the buildings insured that in his capacity as counsel for the plaintiff he called on Archer for the purpose of ascertaining whether formal proof of the loss would be required, and, in reply to such inquiry, either Archer himself, or Trefry, to whom Archer referred him at that time, said there was no need of making out further notice, as they knew all about it, and, when the criminal matter was disposed of, the company would pay. He further testified that he had several interviews with Trefry and that he never could get any blank form from which to make out an account of the loss; that he was sure Trefry told him it was not necessary to make out strict proofs; and that he knew he put the question whether the company would require all the details of proof, or whether they would depend upon the investigations made by the government in the...