Wainer v. Milford Mut. Fire Ins. Co.
| Decision Date | 27 February 1891 |
| Parties | WAINER v. MILFORD MUT. FIRE INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. Clifford and E.A. Douglass, for plaintiff.
W.M Butler, Geo. G. Parker, and H.L. Parker, for defendants.
The action is against a mutual fire insurance company on a Massachusetts standard policy. The defendant says that the policy is void, and denies any liability under it. It also relies in defense upon the fact that there was not a reference of the amount of the loss, according to the provisions of the policy. It is contended by the plaintiff that the reference was not a condition precedent to the right of action, and also that it was waived by the defendant. We do not find it necessary to decide the former point, but one of the grounds upon which it is maintained has a bearing upon the other point, and must be considered in connection with that. It is contended that the provision for reference is intended to settle the question of the amount of a loss under an admitted liability, and not the question whether there was any liability for a loss; that it presupposes a valid policy, upon which the defendant may be liable, and under which there may be a loss. The material parts of the provisions are in these words: "In case of any loss or damage the company *** shall either pay the amount for which it shall be liable, which amount, if not agreed upon, shall be ascertained by award of referees, as hereinafter provided, or," etc. Laying on one side the question whether these provisions can be construed to require the insured to refer the question whether there is any insurance, or to debar him from bringing an action to try that question until a sum has been fixed which shall be taken to be the amount of the loss, if it shall be determined that there was an insurance and a loss, it is obvious that the nature of the question in dispute is important in construing the acts of the parties as showing a waiver of the reference of the amount of the loss. In this case the defendant denied its liability, and it relied on the small value of the property destroyed, not to show that the amount of the loss under the policy was small, but to show that there was no loss. It was not likely to insist upon referring either the main question of the validity of the insurance, involving various specifications, or one of those specifications separate from all others. There were negotiations between the parties in which the defendant denied its liability, but offered to pay a small sum in compromise of the plaintiff's claim, which the plaintiff refused, and noticed the defendant that he should bring a suit upon the policy. He then made to the defendant a written offer to submit the amount of the loss to reference. This offer is open to criticism in two particulars. It has an unnecessary preface, in which it is assumed that the defendant does not deny its liability This is immaterial, and the offer is unconditional. Instead of giving the names of the persons whom the plaintiff had selected, it offers to give them on receipt of notice from the defendant. St.1888, c. 151, provides that if the insurance company shall not, within 10 days after a written request to appoint arbitrators under the provision in the policy, name three men under such provision, it shall be deemed to have waived the right to an arbitration. The defendant objects that the offer made by the plaintiff is not a request under the statute, because it does not contain the names of the persons selected by the plaintiff, and that therefore the rejection of it by the defendant cannot be a waiver of the right of reference. But it is very clear that the statute does not prescribe the only mode in which the company can waive the right to a reference, and it is not at all clear that an offer or request must contain the names of the men selected by the party making it. The reply to this offer did not suggest that it was refused because it did not conform to the statute and the policy, but was wholly taken up with the statement of reasons why the defendant was not liable. The substance of the correspondence was that the plaintiff plainly, but, as the defendant contends, informally, offered to refer the question of the amount of the loss under the provision in the policy, and the defendant refused, for the reason that it denied its liability. This was a waiver of any right it may have had to require an award of the amount of the loss as a condition of maintaining an action against it on the policy.
There are two grounds presented by the auditor's report on which the defendant contends that the policy was void,--that the building had been vacant for more than 30 days before the loss, and during the continuance of the policy, and that the plaintiff was not the sole owner of the property. The policy was dated the 23d day of January, 1889, and purported to insure a dwelling-house, barn, and carriage-house and crib from that date for five years, and contained the provision that the policy should be void "if the premises hereby insured shall become vacant by the removal of the owner or occupant, and so remain vacant for more than thirty days without such assent." The fire was on the 12th day of May, 1889. It would not be competent for a jury to find upon the facts stated by the auditor that the dwelling-house was occupied between the date of the policy and the 1st day of April. From that time until the fire there was ample evidence that the dwelling-house was occupied, and that the premises were not vacant. If the policy was in force from its date, it was therefore rendered void. Kyte v. Assurance Co., 149 Mass. 116, 21 N.E. 361; Lyman v. Insurance Co., 14 Allen, 329. See Hinckley v. Germania Co., 140 Mass. 38, 1 N.E. 737. But the plaintiff contends that the policy did not become operative until about the 13th day of March, and that the premises were therefore vacant less than 30 days while it was in force. The facts found by the auditor are that on the 23d day of January the plaintiff called upon an insurance agent in Fall River, and signed the application for insurance, and was told that the application would be considered and decided upon later. About two weeks after that time he received a postal-card from the agent, informing him that the policy was ready for him. He did not call for the policy until about March 13th, when he went to the office of the agent, received his policy, and paid the premium named therein. Previous to the time of receiving the policy he had paid no money, and signed no obligation other than the application. It is clear upon this statement that there was no oral contract of insurance, and no contract contemplated except upon the delivery of the policy and the payment of the premiums. The...
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