W. P. Hamblin, Inc. v. Newark Fireins. Co.

• Decision Date: 03 November 1927
• Docket Number: No. 6172.,6172.
• Citation: 139 A. 212
• Parties: W. P. HAMBLIN, Inc. v. NEWARK FIREINS. CO.
• Court: Rhode Island Supreme Court

139 A. 212

W. P. HAMBLIN, Inc.

v. NEWARK FIREINS. CO.

No. 6172.

Supreme Court of Rhode Island.

Nov. 3, 1927.

Exceptions from Superior Court, Prove dence and Bristol Counties; Arthur P. Sumner, Judge.

Action by W. P. Hamblin, Inc., against the Newark Fire Insurance Company. Plaintiff was nonsuited, and he brings exceptions. Exceptions sustained, and case remitted.

John B. Higgins, of Woonsocket, for plaintiff.

Hinckley, Allen, Tillinghast & Phillips, of Providence, for defendant.

STEARNS, J. This is an action to recover damages for the loss of an automobile owned by plaintiff and insured by defendant, a foreign insurance company. Plaintiff was nonsuited for failure to make a sworn proof of loss to the company. The case is here on plaintiff's bill of exceptions.

The only exception is to the nonsuit. The facts for the present inquiry are undisputed. Plaintiff, a dealer in automobiles, through its Woonsocket agency made a conditional sale of an automobile in July, 1923, to one Charles Koury, on the usual terms that title was to remain in the vendor until full payment was made, and insured the automobile through one Kirby, defendant's agent in Woonsocket. A month later the automobile was stolen from Koury in Providence. Herbert A. Doyle, plaintiff's Woonsocket agent, at once notified Kirby of the theft, filled out the usual form of notice of loss, and left it with Kirby, who said to him: "This will take the usual form; that is all you have got to worry about; we will pay that; there is nothing more for you to do."

It was provided in the policy, which was in the standard form: That the assured should give written notice of the loss to the company or the agent who issued the policy, and within 60 days render a sworn statement to the company. In the event of a disagreement, the amount of the loss should be determined by appraisers, the assured and the company each to select one, the two appraisers to select an umpire. If the appraisers failed to agree, the matter should be submitted to the umpire, and the written award of any two of them should determine the amount. That no suit should be maintainable, unless commenced within one year after the loss; and no officer, agent, or other representative of the company should have power to waive any of the terms of the policy, unless such waiver was written upon or attached thereto. After his interview with Kirby, Doyle wrote to the company. By a letter to him in reply from the main office of defendant in New Jersey Doyle was referred to the attorney of the company in Providence. The 60-day period had then elapsed. On receipt of this letter he went to the attorney's office. The attorney gave him a report, wherein it appeared the company claimed that Koury had stolen the automobile, and Doyle was informed, if this was the fact, the company would not pay the loss. He then asked the attorney if the company wanted him to produce Koury, and, if he did, if it would pay the claim. The attorney said: "Absolutely; you can rest assured it will be paid." Koury had moved away from Woonsocket, but Doyle found him, and together they went to the attorney's office. The attorney called into his office an adjuster of the company, and Doyle stated his claim, and told him, if it was not paid, he would bring action at once. He was assured that he need not bring suit; that the loss would be paid. The attorney asked Doyle to name an appraiser, which he did. Defend...