Parker v. Farmers' Fire Ins. Co.

• Decision Date: 16 October 1901
• Citation: 179 Mass. 528,61 N.E. 215
• Parties: PARKER v. FARMERS' FIRE INS. CO. SAME v. MIDDLESEX MUT. ASSUR. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 528

61 N.E. 215

PARKER

v.FARMERS' FIRE INS. CO.

SAME

v.MIDDLESEX MUT. ASSUR. CO.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 16, 1901.

Exceptions from superior court, Berkshire county; Justin Dewey, Judge.

Action by Mary E. Parker against the Middlesex Mutual Assurance Company and against the Farmers' Fire Insurance Company. From a judgment in favor of the plaintiff, the defendants except. Exceptions sustained.A. Chalkley Collins, for plaintiff.

Henry V. Cunningham and Frederick B. Brown, for defendants.

KNOWLTON, J.

The principal question in these cases is whether there was any evidence on which to rest a finding that the plaintiff complied with the requirement in each of the policies that, in case of loss, ‘a statement in writing, signed and sworn to by the insured, shall be forthwith rendered to the company, setting forth the value of the property insured, the interest of the insured therein, all other insurance thereon,’ etc.; that such a requirement is valid, and that compliance with it is a condition precedent to a right to recover, is unquestioned. The fire occurred on October 3, 1898. No such statement in writing was rendered to either defendant until December 8, 1898. On that day the statements were mailed, one of which was received on December 10th, and the other on December 12th. The true meaning of such a requirement in a policy is that the statement shall be sent as soon as the exercise of reasonable diligence will enable the assured to send it. When it is contended that a statement was not sent in time under such a requirement, the inquiry always is whether the insured, whose duty it was under the contract to send the paper as soon as he reasonably could, has used due diligence to send it promptly. If there is no dispute in regard to the facts, what is due diligence is a question of law for the court. Smith & Dove Mfg. Co. v. Travellers' Ins. Co., 171 Mass. 357, 50 N. E. 516;Kimball v. Insurance Co., 8 Gray, 33;Smith v. Insurance Co., 4 Mass. 668;Howland v. Insurance Co., 131 Mass. 253;Bennett v. Insurance Co., 67 N. Y. 274;Mispelhorn v. Insurance Co., 53 Md. 473;Insurance Co. v. Brim, 111 Ind. 281, 12 N. E. 315. The decision in Harnden v. Insurance Co., 164 Mass. 383, 41 N. E. 658,49 Am. St. Rep. 467, rests in part on matters which are recited in the opinion as follows: ‘Subsequently the defendant * * * agreed that, if the first proof of loss was delivered to Breed with a promise on his part that he would forward it, the jury might find for the plaintiff. * * * It would seem as though counsel for the defendant did not care to argue that under the circumstances due diligence had not been used by the plaintiff in rendering the statement if one was rendered the last of January, but preferred to rest on the contention that the first proof was not delivered to Breed at all.’ In considering the effect of this case as an authority, these recitals should be kept in mind. Giving full effect to all the evidence relied on by the plaintiff to excuse the delay in sending the statements, and treating it as literally true, we are of opinion that there is nothing in it which would warrant the jury in finding that she used due diligence to send it as soon as she reasonably could. The judge rightly ruled that there was no evidence to show that either of the defendants waived its right to have the statement sent according to the terms of the policy. The plaintiff was bound to know, and the evidence tends to show that she did in fact know, the terms and legal effect of this requirement in the policy. She waited 66 days after the fire before mail a statement of loss to either company. She relies upon the illness of her grandchild,...