Moran v. Commerce Ins. Co.
| Decision Date | 25 May 1942 |
| Docket Number | No. 8379.,8379. |
| Citation | 26 A.2d 533 |
| Parties | MORAN v. COMMERCE INS. CO. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Patrick P. Curran, Judge.
Action of assumpsit by Christo Moran against Commerce Insurance Company on fire policy issued to plaintiff by defendant to recover for damage to plaintiff's automobile by fire. Defendant's motion for directed verdict was granted, and plaintiff brings exception.
Exception sustained and case remitted for a new trial.
Walter H. Strauss, of Providence, for plaintiff.
Henry M. Boss and Francis W. Conlan, both of Providence, for defendant.
This is an action of assumpsit, based on a fire insurance policy issued to the plaintiff by the defendant corporation, to recover for damage alleged to have been caused by fire to his automobile. The case was tried before a justice of the superior court and a jury.
When the plaintiff rested after presenting evidence, the defendant also rested and made a motion that the trial justice direct a verdict in its favor. After arguments this motion was granted and a verdict was directed and returned accordingly, the ground for the direction being that no written proof of loss was filed by the plaintiff with the defendant within sixty days after the loss, as required by a provision in the policy. The case is now before us on a bill of exceptions by the plaintiff, in which the only exception stated is one taken by him to the granting by the trial justice of this motion of the defendant.
There was no evidence that a written proof of loss was filed by the plaintiff with the defendant, as thus required. But he contended that this requirement was waived by the defendant, because a man by the name of Ortner, whom the plaintiff claimed to have shown to be a duly authorized agent of the defendant, had, within sixty days after the loss occurred, notified the plaintiff that the defendant would not pay the plaintiff's claim for such loss. The trial justice held, however, that there was no evidence from which the jury could find that Ortner had authority from the defendant to give the plaintiff such notice; and the direction of a verdict for the defendant must stand or fall according to whether or not that holding was correct.
It is contended by the plaintiff and admitted by the defendant that, according to the rule stated and applied in Massell v. Protective Mut. Fire Ins. Co., 19 R. I. 565, at page 568, 35 A. 209, if the defendant, before the expiration of the time limited, by the policy, for the filing by the plaintiff of a written proof of loss, notified the plaintiff that it refused to pay the plaintiff's claim, this was a waiver of any defense based on a failure by the plaintiff to file such proof within that time.
The decisive issue in the instant case is then whether the jury, on a reasonable view of the evidence, could have found that Ortner had authority from the defendant to notify the plaintiff that the defendant refused to pay the plaintiff's claim.
The evidence on this vital issue consisted solely of testimony by the plaintiff himself and certain exhibits. We have examined these exhibits and are of the opinion that from them the jury could reasonably have found that at the time when the policy on which this action is based was issued and down to and including the time when Ortner notified him that the defendant would not pay his claim, Lodie Brien was the agent of the defendant and was duly authorized to act as such for the transaction of its authorized business of insurance in the state of Rhode Island, which included fire insurance, with his office in the city of Woonsocket.
The body of the policy ends thus: "In Witness Whereof, this Company has executed and attested these presents; but this policy shall not be valid unless countersigned by a duly authorized Agent of the Company." This is followed by what purport to be the signatures of the chairman of the board, the president and the secretary of the company. Then follows: "Countersigned at Woonsocket, R. I. this 26th day of November 1938", and the signature of Lodie Brien as "Agent". There was no further evidence as to what was the extent or the limits of his powers to act as such agent and so bind the defendant.
The plaintiff testified to the following as facts: On the morning of January 27, 1939, the next day after the occurrence of the fire that caused the damage for which he seeks to recover, he went to Brien's office and talked there with the latter about the matter and asked what he, the plaintiff, should do. Brien said: "Well, I will get in touch with the agency in Providence, the head office", and added: "Come in tomorrow and I will give you the answer."
Then, when asked whether he talked with anyone else of the insurance company with regard to the matter, the plaintiff answered: "The only one I have talked to is Mr. Ortner, the insurance man from Providence, the investigator", who, he said, came to see him the next night and requested a statement from him. When he was asked by his attorney whether he talked with "somebody outside of Lodie Brien regarding this loss", his answer was:
A little later he gave to the following questions by his attorney the following answers:
And further on, the plaintiff's attorney asked him: "Did Mr. Ortner at any time tell you that the company wouldn't pay the claim?" and he answered "Yes". He said that Ortner told him this personally at the Nash agency in Woonsocket, when they met there, by appointment, with regard to this matter, about the second or third week of March 1939.
The above sets forth substantially all the evidence at the trial that is relied on by the plaintiff as proving that the defendant, through a duly authorized agent, had notified the plaintiff that it would not pay his claim. The question now before us is whether from this evidence the jury could reasonably have found not only that in this matter Ortner acted as an adjuster, and not merely as an investigator, for the defendant, but also that as such adjuster he had sufficient actual or implied authority from it to give notice to the plaintiff, in its behalf, that it would not pay his claim.
If the jury had so found, the doctrine of waiver which was stated and applied by this court in Massell v. Protective Mut. Fire Ins. Co., supra, would have applied and a verdict for the plaintiff would not have been inconsistent with a failure by him to file a proof of loss as required by the...
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W. & H. JEWELRY CO. v. Aetna Casualty & Surety Co.
...refused to pay the insured's claim was a waiver of the defense based on failure of the insured to file proof of loss. Moran v. Commerce Ins. Co., 68 R.I. 56, 26 A.2d 533; Massell v. Protective Mutual Fire Ins. Co., 19 R.I. 565, 35 A. 209. In the latter case the Court held, 19 R.I. at page 5......