Urbaniak v. Firemen's Insurance Co. of Newark, New Jersey , 227 Mass. 132 ( 1917 )

Braley, J.

The policies being in the standard form prescribed by R. L. c. 118, § 60, the plaintiffs after the loss were required to render forthwith to the company a statement in writing, signed and sworn to, setting forth the value of the property insured, their interest therein and other insurance thereon in detail, the purpose for which and the persons by whom the building insured was used, “and the time at which and the manner in which the fire originated, so far as known to the insured.” While conceding that such statements were not furnished, the plaintiffs contend, that this condition was waived by the conduct and assurances of the defendants’ agent through whom the policies were obtained, and by the agreement of reference and appearance of the defendants before the referees upon whose awards the actions are brought.

The jury undoubtedly could have found that the plaintiff Willhhn Urbaniak, who appears to have acted for his wife as well as himself, was illiterate and unable to read the policies, and relied upon the representations of the agent, “leave it to me and I will take care of it,” and that he had "sent your papers” and that he "would get your insurance.” But, as the evidence when viewed in the light most favorable to the plaintiffs fails to show that in mailing the representations the agent acted within the scope of his authority, there was no waiver on this gromnj.^* Harris v. North American Ins. Co. 190 Mass. 361, 368.

The plaintiffs also must be presumed to have known of the terms of the policies. Secoulsky v. Oceanic Steam Navigation Co. 223 Mass. 465.

Whether the circumstances would have been sufficient to have warranted the jury in finding that the delay was excusable, if proof of loss had been rendered when the plaintiffs, upon being dissatisfied with the conduct of the agent, consulted counsel, is immaterial, as even then no attempt at compliance appears. Greenough v. Phoenix Ins. Co. 206 Mass. 247, 249, 250.

And the agreement for reference having expressly provided, that neither the submission nor the award of the referees shall in any way affect any other question than the amount of loss or damage, “nor waive nor impair any right of any party hereto,” the defendants are not estopped by the agreement or the award from contesting liability. Rockwell v. Hamburg-Bremen Fire Ins. Co. 212 Mass. 318, 322, 323.

The ruling that 'the plaintiffs could not recover was right, and their exceptions must be overruled.

So ordered.

* See St. 1910, c. 552.