Perry v. Dwelling House Ins. Co.

• Decision Date: 29 July 1892
• Citation: 33 A. 731,67 N.H. 291
• Parties: PERRY v. DWELLING HOUSE INS. CO.
• Court: New Hampshire Supreme Court

33 A. 731

67 N.H. 291

PERRY

v. DWELLING HOUSE INS. CO.

Supreme Court of New Hampshire. Coos.

July 29, 1892.

Action by George E. Perry against the Dwelling House Insurance Company. Defendant moves to set aside a general verdict for plaintiff, returned, by direction of the court, on special findings. Judgment on the verdict.

Assumpsit by George E. Perry against the Dwelling House Insurance Company, upon a policy of insurance. Trial by jury. Verdict for the plaintiff. The home office of the defendant was in Boston, Mass. George M. Stevens & Son, insurance agents at Lancaster, N. H., prepared the application and sent it to the defendant's home office, from which they subsequently received the policy, delivered it to the plaintiff, and collected the premium. The application disclosed a mortgage in favor of Mary Simpson, and the policy provided for the payment of the loss, if any, to her as mortgagee. There was a second mortgage, in favor of James Berry, which was not noted in the application or in the policy; but there was evidence that the plaintiff, when he made the application, informed Stevens & Son that Berry had a mortgage, and had told him to pay no attention to it, and the defendant made no claim that the plaintiff failed to have the existence of the Berry mortgage noted in the application and policy by reason of fraud. Stevens & Son filled out the application. The holder of the Berry mortgage testified that she did not propose to claim any of the Insurance money. The policy provided that the company should not be liable to pay more than the actual cash value of the interest of the assured, after deducting the amount of incumbrances, unless it was made specifically payable, in whole or in part, to a mortgagee or incumbrancer, and, in the latter case, the amount of the incumbrance should not be deducted. It further provided that it should be absolutely void if there was any lien whatever except as stated in writing therein. It also provided that a claimant should forthwith give written notice of a loss, and within 30 days furnish proofs thereof, and specified what such proofs should contain. There was also a provision that no act or omission of the defendant, its officers, or agents, should be a waiver of strict compliance with the terms and conditions of the policy, or an extension of time for compliance, unless in express terms and in writing, signed by the president or secretary. The plaintiff notified Stevens & Son of the loss on the day after it occurred, and they at once notified the defendant. Some days later, one Melchert, the defendant's superintendent of agencies and adjuster, called on the plaintiff, by the defendant's direction, to investigate the loss. The plaintiff gave Melchert a list of the articles of personal property lost, so far as he could remember them, with the value of each article, according to his judgment. There was no serious controversy between them about items of loss or damage. The plaintiff testified that Melchert said he would carry the list to the defendant, and presumed that everything would be all right, but could not say certainly, as he was nothing but an agent; that Melchert said nothing about proofs of loss; and that he himself had no understanding about further proofs. Melchert gave a somewhat different account of this conversation. When the 30 days had nearly or quite expired, the plaintiff learned, through Stevens & Son, that the defendant claimed no proofs of loss had been furnished, and he made and sent to the defendant, a few days after the expiration of the 30 days, a proof of loss, to which no objection was made at the trial, except that it was made too late, and that it was made upon a blank of another company, and purported to be addressed to that company, although it described the policy in suit. The remaining evidence, so far as material to an understanding of the decision, is stated in the opinion of the court.

Several special questions were submitted to the jury. To the question whether Stevens & Son prepared and forwarded the application, delivered the policy, and collected the premium, by authority of the defendant and as its agents, the answer was that they did. To the question where the contract of insurance was completed, whether in Massachusetts or in New Hampshire, the answer was that it was completed in New Hampshire. To the question whether the plaintiff informed Stevens & Son of the Berry mortgage, at the time of the application, the answer was that he did. To the question whether the defendant, within the 30 days after the loss, made such representations to the plaintiff, or so conducted in respect to proofs of loss, that the plaintiff understood therefrom, and had good reason to understand, that no proofs of loss, other than such as he furnished to the defendant within said 30 days, would be required of him, unless the defendant should notify him that it desired other or further proofs, the answer was in the affirmative, as also to the question whether the plaintiff relied upon such representations and conduct, and in consequence thereof omitted to furnish the formal proof of his loss within 30 days after it occurred. With respect to the last two questions, the court instructed the jury as follows: "The defendant is a corporation, and, as you know, a corporation can only act through its officers and agents. When I say in the question, 'Did the defendant, within the thirty days after the fire, make such representations to the plaintiff?' I mean, did the corporation, through its authorized officers or agents, make such representations and so conduct in respect to proofs of loss, that it gave the plaintiff to understand that no further or other proofs would be required of him than those which he furnished at that time. You will remember that, shortly after the fire, Mr. Melchert, the superintendent of agencies and adjuster of this corporation, went to the plaintiff's place of residence, and had a conversation with him and his wife in regard to the loss. I am not going to rehearse it; but, according to your recollection of the evidence and your finding of the facts, what was said between Mr. Melchert and the plaintiff? Did Mr. Melchert give the plaintiff to understand, from what was said, and the way the business was done, that the list which the plaintiff furnished to him at that time, and the information which he gave him, were all that would be required of him, unless he heard further from the defendant? You heard what Mr. Melchert said in relation to reporting to the corporation at Boston, and you have heard what has been said with reference to what was done by the corporation, through its officers, subsequent to that interview. You have heard all the evidence bearing upon this question and are prepared to answer it. What is the balance of evidence, as it lies in your minds? From what you have heard upon the stand, did the defendant, through its authorized officers and agents, give the plaintiff to understand that no further proofs of his loss would be required of him, beyond what he had...