Reed v. Washington Fire & Marine Ins. Co.

• Decision Date: 27 February 1885
• Parties: William L. Reed v. Washington Fire and Marine Insurance Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

138 Mass. 572

William L. Reed v. Washington Fire and Marine Insurance Company

Supreme Judicial Court of Massachusetts

February 27, 1885

Argued October 22, 1884. [Syllabus Material]

Plymouth.

Contract upon a policy of insurance, in the form prescribed by the Pub. Sts. c. 119, § 139, against loss by fire, for one year from December 7, 1882, on a building in South Abington occupied by the plaintiff as a boot and shoe factory. The policy contained, among others, the following clauses:

"In case of any loss or damage under this policy, 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, in detail, the purposes for which and the persons by whom the building insured, or containing the property insured, was used, and the time at which and manner in which the fire originated, so far as known to the insured. The company may also examine the books of account and vouchers of the insured, and make extracts from the same.

"In case of any loss or damage, the company, within sixty days after the insured shall have submitted a statement, as provided in the preceding clause, shall either pay the amount for which it shall be liable, or replace the property with other of the same kind and goodness, or it may, within fifteen days after such statement is submitted, notify the insured of its intention to rebuild or repair the premises, or any portion thereof separately insured by this policy, and shall thereupon enter upon said premises and proceed to rebuild or repair the same with reasonable expedition. It is moreover understood that there can be no abandonment of the property insured to the company, and that the company shall not in any case be liable for more than the sum insured, with interest thereon from the time when the loss shall become payable, as above provided."

After these clauses were three others, relating to other insurance, the case of a policy being made payable to a mortgagee, and the cancellation of the policy, followed by these clauses:

"In case any difference of opinion shall arise as to the amount of loss under this policy, it is mutually agreed that the said loss shall be referred to three disinterested men, the company and the insured each choosing one out of three persons to be named by the other, and the third being selected by the two so chosen, provided that neither party shall be required to choose or accept any person who has served as a referee in any like case within four months; and the decision of a majority of said referees in writing shall be final and binding on the parties.

"No suit or action against this company for the recovery of any claim by virtue of this policy shall be sustained in any court of law or equity in this Commonwealth unless commenced within two years from the time the loss occurred."

Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows:

It was admitted that the building insured by the policy in suit was destroyed by fire on July 1, 1883.

The plaintiff, without evidence of any reference in accordance with the terms of the policy, or of any attempt on his part to obtain such reference, after a difference of opinion had arisen as to the amount of loss under the policy, offered evidence for the purpose of showing the damage sustained by the fire.

The defendant objected to the admission of evidence for that purpose, for the following reasons: "1. Because the statute under which the policy was made, and the policy itself, which is the contract between the parties, both provide that, in case any difference of opinion shall arise as to the amount of loss, the question of the amount of loss shall be submitted to referees, as therein provided. 2. Because it is incumbent on the plaintiff, under the statute and policy, and in support of the averments of his declaration, to show such a reference, or a demand on his part for such a reference, in accordance with the terms of the policy, and a refusal thereof by the defendant, before he can go to the jury on the question of damages."

But the judge overruled the objections; and allowed evidence of the amount of loss to be submitted to the jury, subject to the defendant's objection.

To prove the actual value of the insured property, or of some of it, at the time of the loss, the plaintiff, among other witnesses to the same point, called George E. Keith, of Brockton, who testified that he was a shoe manufacturer; had been in that business ten years; had built two shoe factories in ten years, and had the whole charge of fitting them up, and was now engaged in manufacturing boots and shoes; that he was acquainted with Reed's factory at South Abington before it was burned, and with the fittings of the factory; that he had been there a good many times, -- he did not know how many times; that he had visited back and forth, and gone in and out there, and could judge some things in regard to the fittings of Reed's factory from his own; that he knew the fittings of Reed's factory. The witness was then asked, "What do you consider the value of the fittings in Reed's shop?" To this question the defendant objected, but the objection was overruled, and the witness answered, subject to the defendant's objection, "That factory, in my opinion, could not have been fitted up for less than five or six thousand dollars."

The plaintiff also called, for the same purpose of proving the value of the damaged property, Hosea F. Whidden, who testified that he resided at South Abington, and was a tack manufacturer there; that his shop was fifteen hundred feet from Reed's; that he had been in the tack business there nearly forty years, and during the whole time that Reed's factory was standing; that he went into the factory a great many times; that he was there during the whole time of the building and fitting up of the factory; that he had frequently visited...