Smith v. Middlesex Mut. Fire Ins. Co.
| Decision Date | 23 October 1917 |
| Citation | 228 Mass. 301,117 N.E. 331 |
| Parties | SMITH v. MIDDLESEX MUT. FIRE INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Hampden County; Christopher T. Callahan, Judge.
Action by Josiah R. Smith against the Middlesex Mutual Fire Insurance Company. From judgment of the superior court, following submission on an agreed statement of facts, plaintiff appeals. Judgment ordered entered for defendant in accordance with the terms of the agreement of the parties.
N. P. Avery and A. S. Gaylord, both of Holyoke, for plaintiff.
Brown & Came, of Boston, for defendant.
The defendant places its defense on the ground that the plaintiff, in violation of the terms of the policy upon which he declares, made other insurance upon the same property without the assent in writing or in print of the defendant company.
It is agreed: That the defendant's policy was in the Massachusetts standard form prescribed by chapter 576 of the Acts of 1907, in the amount of $900, for the term of three years beginning March 8, 1912. That it covered certain property described and apportioned in said policy as follows:
‘House. $375.00
Wagons. $50.00'
That said policy contained this provision:
‘This policy shall be void if * * * the insured now has or shall hereafter make any other insurance on the said property without the assent in writing or in print of the company.’
And that it also contained this provision:
‘It is made a condition of this contract that the total insurance permitted, including the amount of this policy, is limited to $7,600.
‘In case of other insurance on any of the property mentioned in this policy, whether said other insurance includes the same permissions, hazards, or limits, or whether said other insurance covers in as general a location or not, this company shall be liable only in the proportion its insurance bears to the whole insurance thereon.’
It is agreed that at the time when this policy was issued there were on the property five other fire insurance policies, which with this policy amounted to $7,600; that the property was injured and destroyed by fire on July 28, 1914; that the defendant had due notice of the loss and that the plaintiff has done all things to entitle him to recover under the terms of his policy, so far as giving notice and furnishing statements required by the terms of the Massachusetts standard policy are concerned.
Before the fire four of the policies expired by limitation of time and were renewed. The fifth policy on expiration was not renewed, but a new policy was made in another company covering stock to the amount of $250 in addition to the amount apportioned to the house, barn and produce. The defendant makes no question as to the validity of the renewal policies or as to the substituted policy.
It is further agreed: That on March 27, 1912, the plaintiff secured a policy in the Orient Insurance Company in the Massachusetts standard form of fire insurance policy, for the term of three years, in the amount of $1,200, of which $1,100 covered a portion of the same property described and apportioned as follows:
‘House. $400.00
Stock. $100.00'
That one of the printed provisions which was attached to this policy was the following:
‘E-In case of other insurance on any of the property mentioned in this policy, whether such other insurance is valid or not, or whether it covers the same permissions or hazards or in as general a location or not, this company shall be liable only in proportion as this insurance bears to the whole insurance thereon.’
That at the time when this policy was issued the agent knew that there was prior insurance covering the property and so advised the Orient Insurance Company, and that through inadvertence and oversight the agent neglected to write upon the ‘form’ or ‘rider’ attached to the said policy the words ‘Other insurance permitted,’ which words the agent thought were printed in said ‘form’ or ‘rider.’ It is further agreed that on April 25, 1913, the ‘special agent’ of the Orient Insurance Company, who had general supervision of the company's business in the Massachusetts and Rhode Island territory, gave permission to the agent who issued the policy dated March 27, 1912, to issue to the plaintiff a second Orient policy, which was accordingly issued May 1, 1913, whereby the plaintiff was insured for the term of three years from that date for $1,200, of which $1,100 covered a portion of the same property as follows:
‘House. $400.00
Stock. $100.00'
On the ‘form’ or ‘rider’ which was signed by the agent and attached to the policy in the manner provided for by chapter 576 of the Acts of 1907, were written the words, ‘Other insurance permitted,’ clause E, above quoted, was printed thereon and no limitation of the amount of such other insurance was made.
It was further agreed that the agent, in his ‘daily report’ to the home office of the Orient Insurance Company on the last policy wrote, ‘An additional policy No. 399602’ (the first policy); and attached to the ‘daily report’ the letter of the ‘special agent’ giving permission to issue to the plaintiff a second policy. The agreed facts contain no statement that the defendant assented to the additional insurance in excess of the amount limited at the time when placed. Nor does the plaintiff contend that the defendant ever knew that the excessive insurance had been obtained until after the fire.
As the case is before us on an appeal taken by the plaintiff from the judgment of the superior court following a submission to a judge of that court upon the agreed statement of facts, the only question presented is whether upon the agreed facts and the reasonable inferences to be drawn therefrom the finding of the judge of the superior court for the defendant was unwarranted as a matter of law. St. 1913, c. 716, § 5; Boston Lodge Order of Elks v. Boston, 217 Mass. 176, 177, 104 N. E. 453.
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