Nichols v. Cont'l Ins. Co.

• Decision Date: 05 January 1929
• Parties: NICHOLS v. CONTINENTAL INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 509

164 N.E. 442

NICHOLS

v.CONTINENTAL INS. CO.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 5, 1929.

Report from Superior Court, Bristol County; Marcus Morton, Judge.

Action by Albert J. Nichols against the Continental Insurance Company. Verdict for defendant. On report. Verdict sustained, and judgment rendered for defendant.

A. Fuller, of Taunton, for plaintiff.

B. A. Brickley, of Boston, for defendant.

CROSBY, J.

This is an action of contract on a policy of insurance against loss by fire. The case is before us on a report, wherein it is recited that the plaintiff owned a dwelling house, in the town of Falmouth, which was insured against loss by fire by five separate policies, issued by five different companies in various amounts. All the policies were issued by the same agent, whose office was in the town of Falmouth, and were payable to the same mortgagee as his interest might appear. The house was destroyed by fire on November 24, 1925, all the policies being then in force.

The plaintiff learned of the fire on the following day, and on November 26, 1925, saw the agent at Falmouth and made an oral report of the loss. On November 28, the following notice was mailed by Albert Fuller, the plaintiff's attorney, to the agent, and was duly received by him:

‘This is to give you notice that property insured under the following policies was totally destroyed by fire on November 25, 1925, the cause of the fire being unknown: Policy No. 781203 Phoenix Assurance Co. $3,650.00 Policy No. 1285 Springfield Ins. Co. $1,000.00 Policy No. 1092 Providence-Washington Insurance Co. $1,500.00 Policy No. 1272 Springfield $1,000.00 [This policy covered a garage and is not material in the case]. Will you kindly send to Albert Fuller, 5 Taunton Green, Taunton, Mass., form for proof of loss at your earliest convenience.’

On December 11, 1925, the plaintiff's attorney wrote to the agent stating that, under date of November 28, he gave notice in behalf of the plaintiff that certain property insured through the agent had been destroyed by fire, and requesting that forms for proof of loss be sent; that the writer had receivedfor the Barnstable County Mutual Insurance Company such form, but had not received any for the other companies, and requested that these be forwarded. Separate notice of loss had been given by the insured to the Barnstable County Mutual Insurance Company. The policy in that company, and the policies in the companies named in the notice of November 28, were in the possession of the mortgagee at the time of the loss by fire. The loss under these policies was adjusted and paid by the several companies.

Eleven months after the fire the plaintiff found among his papers the policy issued by the defendant company and gave immediate notice to the defendant. It is agreed that the total loss on the dwelling house was $10,560, and that the proportion of the policy issued by the defendant to the total insurance is 31.33 per cent. of the whole, making the loss claimed by the plaintiff under the policy issued by the defendant $3,308.44. The mortgagee has released all interest under this policy. In his opening to the jury the plaintiff's counsel stated the foregoing facts, and the defendant moved that a verdict be directed in its favor. The presiding judge ruled that, as matter of law, sufficient notice to the defendant had not been given, and allowed the motion. The plaintiff excepted.

It thus appears that no statement in writing sworn to by the insured was forthwith rendered to the company as required by the terms of the policy, G. L. c. 175, §§ 99, 102, nor to its local agent as required by clause 7 of said section 99. Although the fire occurred on November 24, 1925, no statement of the loss was given to the defendant until October, 1926. It is plain that the statutory provision relating to the policy was not complied with. The...