Paulauskas v. Firemen's Fund Ins. Co.
| Decision Date | 24 November 1925 |
| Citation | 149 N.E. 668,254 Mass. 1 |
| Parties | PAULAUSKAS v. FIREMEN'S FUND INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Worcester County; Philip J. O'Connell, Judge.
Action of contract by Stanislaus Paulauskas against the Firemen's Fund Insurance Company to recover for damages to plaintiff's automobile by fire. Defendant's motion for directed verdict was denied, and it excepts. Exceptions sustained, and judgment entered for defendant.
John H. Meagher, Emil Zaeder, and John L. Bianchi, all of Worcester, for plaintiff.
M. C. Taylor, of Boston, for defendant.
The defendant issued to the Henley Kimball Company and Stanislaus Paulauskas ‘as their interest may appear’ a policy of insurance against loss by fire of the plaintiff's automobile. There was evidence that the automobile was purchased by the plaintiff from the Henley Kimball Company on a contract of conditional sale, and that it was destroyed by fire. The defendant relies on the plaintiff's failure to comply with the conditions of the policy as to notice and proof of loss, and on his breach of certain warranties contained in the policy. The defendant's motion for a directed verdict was denied and the case is here on the defendant's exceptions.
The policy required the assured to furnish the company, within sixty days of the loss or damage of the property, a statement in writing, signed and sworn to by the assured, stating the knowledge and belief of the assured as to the time and cause of the loss or damage, and ‘the interest of the assured and of all others in the property,’ failure to render such sworn statement making the ‘claim null and void.’ This provision of the policy was not complied with. The plaintiff did not furnish the defendant within sixty days of the loss a sworn statement of loss. His contention is that this requirement was waived by the defendant. As showing a waiver of this requirement, he relies on the evidence that on the day of the fire the Henley Kimball Company wrote the defendant's agent at Boston informing him of the loss by fire; on the next day a detailed report in writing describing the loss was mailed this agent. Later the plaintiff met one of the defendant's adjusters and ‘answered whatever questions' were asked. He was referred by this adjuster to Mr. Cotter, a member of the law firm which represented the defendant. At one of the meetings with Mr. Cotter the plaintiff was examined by him. He testified that after the examination Mr. Cotter said to him that the examination would be written out in a few days and he would write the plaintiff to come down and swear to it; that Mr. Cotter did not write; that he ‘waited a week and went down and swore to the questions and answers.’ After sixty days had elapsed, the plaintiff gave his sworn statement.
[1] The policy contained this claused:
‘No officer, agent or other representative of the company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power to be deemed or held to have waived such provisions or conditions unless...
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