Koeski v. Springfield Fire & Marine Insurance , 1919 Mass. LEXIS 981 ( 1919 )

Braley, J.

The policy issued by the defendant having expressly permitted other insurance without notice to the company, the additional policy procured by the plaintiff in another company did not violate its terms nor render the contract voidable at the election of the insurer; but as the second policy contained a clause that “the policy shall be void if the insured now has any other insurance on the said property,” it never attached or became a binding enforceable obligation between the parties. It follows that when the plaintiff submitted his proof of loss in which he declared under oath that the defendant’s policy was “the only insurance in effect,” the statement was true and correct. We assume that the policy declared on is in the standard form prescribed by St. 1907, c. 576, § 60. But the clause that the policy should be void “if the insured shall make any attempt to defraud the company either before or after the loss,” upon which the insurer relies to avoid payment, did not of itself as matter of law warrant the ordering of a verdict for the defendant for reasons previously stated. Hayes v. Milford Mutual Fire Ins. Co. 170 Mass. 492, 496.

It becomes unnecessary to consider the rulings relating to the admission and exclusion of evidence to which the plaintiff duly excepted, or the question whether under Stone v. Denny, 4 Met. 151, Clapp v. Massachusetts Benefit Association, 146 Mass. 519, 529, and Barker v. Metropolitan Life Ins. Co. 198 Mass. 375, the jury were to determine if the plaintiff made the statement with the intention of defrauding the company.

The exceptions must be sustained.

So ordered.