Wholley v. Western Assur. Co.
| Decision Date | 11 September 1899 |
| Citation | 54 N.E. 548,174 Mass. 263 |
| Parties | WHOLLEY v. WESTERN ASSUR. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
N.P. Frye, for plaintiff.
Shepard Stebbins & Storer, for defendant.
The defendant is a foreign insurance company, with its principal office in Toronto, Canada. At the time of the issuing of the policy and of the loss it had a general agent in Boston and a local agent, one Fay, in Lawrence, where the property was situated. The defendant does not contend now, as we understand it, that the policy did not attach, and that a loss has not occurred under it. Its contention is that no proofs of loss have been furnished as required by the policy and that there has been no arbitration to determine the amount of the loss, as required by the policy as a condition precedent to the bringing of an action in case the parties fail to agree upon the amount of the loss. There was evidence tending to show that on the morning after the fire the plaintiff notified Fay, the local agent, of it, and that Fay thereupon notified the Boston office, and received from one Dooley, who it was admitted was a special agent or adjuster of the defendant company, a reply, saying that the notice of loss had been received, and that he would be in Lawrence on the following Tuesday, and give the matter attention. There was also evidence tending to show that Dooley went to Lawrence, and in company with Fay viewed the premises, and afterwards, with Fay, saw the plaintiff, and agreed with him that the amount of the loss should be left to one Flanders, a carpenter, and that the company would settle on the basis of his figures; that Flanders, a few days after, handed his figures to Fay, who forwarded them to Dooley, but received no reply either to that or subsequent letters to Dooley, and that nothing more was ever done by Dooley or the company in relation to the matter. We think that it would have been competent for the jury to find on this evidence that Dooley was sent by the general agent at Boston to Lawrence to investigate and adjust the loss, and that it was within the apparent scope of his authority to waive proofs of loss, and to agree upon the amount of the loss, and that he did so by agreeing to leave the matter to Flanders, and to accept his figures as the basis of settlement. The notice of the fire was sent to the office in Boston, and it is hardly to be supposed that Dooley would have acted on it without some authority or direction from the general agent. It is admitted that he was an adjuster, and the natural import of his presence at the scene of the loss, after the notice to the Boston office and his reply, would be that he was there to settle and adjust the loss on behalf of the company, and with authority for that purpose. Under such circumstances we think that the agreement to settle according to Flanders' figures could have been found to constitute a duly-authorized waiver of the proofs of loss which were required by the policy. Graves v. Insurance Co., 82 Iowa, 637, 49 N.W. 65; Brown v. Insurance Co., 74 Iowa, 428, 38 N.W. 135; Insurance Co. v....
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