Levi v. Palatine Insurance

If the list furnished the local agent was not a technical compliance with section 6, chapter 170, Public Statutes, requiring notice in writing by the insured to the secretary, a director, or an agent of the insurer, in case of loss or damage of property insured, any defect therein might be waived. Gleason v. Insurance Co., 73 N.H. 583; Perry v. Insurance Co., 67 N.H. 291, 296. The question of waiver was submitted to the jury without objection, so far as appears, to the insufficiency of the evidence to sustain a finding for the plaintiff, and none is taken here. The requirements of a sworn statement of loss and appraisal by referees are in conflict with chapter 170, Public Statutes, and compliance with either is not essential to the maintenance of a suit upon the policy. Gleason v. Insurance Co., supra; Franklin v. Insurance Co., 70 N.H. 251.

If refusal to enter upon or continue an appraisal by referees when required by the insurer within the time limited does not defeat the action, an act which indicates the insured's intention not to enter into such submission, or renders the proceeding impossible, cannot have that effect. As the defendants could not have compelled the insured to enter upon a submission to referees if they had applied for the same within the time limited, the fact (if it be one) that they were prevented from applying for referees by a sale of a portion of the goods before the expiration of that time is immaterial. There was evidence from which it could be found that the defendants had all the opportunity for and made all the examination they desired as to the injury to the goods insured.

The defendants' claim that the plaintiff was bound as to the goods damaged "to get them back into as good condition as she could" is not based upon any express provision of the policy to that effect. If the word "condition" has acquired in insurance circles the meaning attributed to it in the motion for a nonsuit, the parties to this policy made no use of it. The stipulation said to be found in the standard form of policy, "if the insured property is exposed to loss or damage by fire, the insured shall make all reasonable exertions to save and protect the same," by its terms applies to property threatened with injury by fire — not to property which has been damaged thereby. The policy insured against loss or damage by fire. If the plaintiff lost by reason of her negligence in care of the goods after the fire, she could not recover of the defendants damages therefor. There was, however, evidence that the plaintiff endeavored to follow the directions of the defendants' local agent as to the care of the goods, and that the course followed was what good judgment dictated. It could also have been found from the action of the special agent in inspecting the goods and appraising the damage, the absence of complaint at the time, and the course which the plaintiff was instructed she must pursue if she refused to accept the sum offered, that the defendants waived such right as they had, if any, to any different course in the treatment ("conditioning") of the goods than had been pursued.

As the case is brought here, it must be assumed, in the absence of exception to the charge, that all issues that could be raised on the evidence were raised and properly submitted to the jury, and were found for the plaintiff by the verdict for her.

Exception overruled.

All concurred.