Barton v. Automobile Insurance

5 Mass. App. Div. 457

This text of 5 Mass. App. Div. 457 (Barton v. Automobile Insurance) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barton v. Automobile Insurance, 5 Mass. App. Div. 457 (Mass. Ct. App. 1940).

Opinion

Zottoli, J.

This is an action of contract brought by the plaintiff to recover for an alleged fire loss covered by the terms of a policy of insurance issued by the defendant on July 24,1930, effective from July 16,1930. The plaintiff’s declaration, insofar as the matter therein is of importance to the issues presented by the report of the trial judge, after alleging the issuance of the policy, the loss under it, and [458]*458the compliance with certain terms of the policy, sets forth a claim respecting a waiver of the provisions of the policy concerning the apprisal therein referred to. The defendant’s answer, in brief, sets up misrepresentation, fraud, and attempted fraud, both before and after the loss, a general denial together with affirmative allegations of failure of the plaintiff to bring the action seasonably, and a further allegation that the action was prematurely brought.

It appeared in evidence that the loss in question occurred on July 29, 1930. The plaintiff’s writ is dated October 22, 1935. After the trial had proceeded for about thirty days “it was stipulated by counsel for both parties that they should present all evidence which would enable the court to find the facts which would raise the question of law as to whether the plaintiff’s action was brought prematurely because of non-compliance with the terms of the policy relative to the ascertainment and estimate of the loss by appraisers, or too late, and upon completion of this evidence the court suspend the further trial of the case and find such facts as would be warranted by that portion of the evidence, report such findings and the questions of law raised thereby to the Appellate Division for determination, and that to protect the interests of both parties in the event that the court had no such authority the court would make rulings of law upon the facts thus found, and would make an appropriate order or general finding for one or other of the parties, and' that the aggrieved party would file a request for report of said rulings, and1 that the court would report the same to the Appellate Division for determination.” The report further states that “the court thereupon ordered the case to proceed under said stipulation and the trial proceeded in accordance therewith.” The policy in question was offered and admitted in evidence. Among others, not now important, it contained the following provisions:

[459]*459‘1 This Company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and in no event for an amount in excess of that specified in the policy and the loss or damage shall be ascertained or estimated according to such actual cash value with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the Assured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the Assured and this Company, or, if they differ, then by appraisers, as hereinafter provided; and the amount of loss or damage having been thus determined, the sum for which this Company is hable pursuant to this policy shall be payable sixty days after due notice, ascertainment, and satisfactory proof of loss have been received by this Company in accordance with the terms of this policy. It shall be optional, however, with this' Company to take all, or any part of the articles at such ascertained or appraised value and also to repair or replace the property lost or damaged with other of like kind and quality within a reasonable time on giving notice within thirty days after receipt of the proof herein required, of its intention so to do; but there can be no abandonment to this Company of the property described.”
“In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the Assured and this Company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately the sound value and damage, and failing to agree, shall submit their differences to the umpire, and the award in writing of any two shall determine the amount of such loss; and the parties thereto shall pay the appraisers respectively selected by them, and shall bear equally the expenses of the appraisal and umpire”
“In the event of loss immediate notice with full particulars must be given or mailed by the Assured to this Company or its agents. Failure to present Claim [460]*460within three months from date of loss invalidates the same.”......
“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless the Assured shall have fully complied with all the foregoing requirements, nor unless commenced within twelve months next after the happening of the loss, provided that where such limitation of time is prohibited by the laws of the state wherein this policy is issued, then and in that event no suit or action under this policy shall be sustained unless commenced within the shortest- limitation permitted under the laws of such state.”.....

After the stipulation was entered into, the court heard the evidence of the parties on the issues therein outlined. Counsel for both parties having informed the court that the evidence introduced “was all the evidence either of them had to offer as bearing upon the question as to whether the plaintiff brought this action either prematurely because of non-compliance with the terms of the policy relative to the ascertainment and estimate of the loss by appraisers or too late”, suspended the trial and allowed the plaintiff .to file the following requests for rulings:

“(1) Under the terms of the stipulation of the parties the Court is precluded as matter of law from making a finding of fact that the plaintiff brought this action prematurely because of the non-compliance with the terms of the policy relative to the ascertainment and estimate of loss by appraisers, or a finding of fact that the plaintiff brought this action too late. ’ ’
“ (2) Under the terms of the stipulation of the parties the Court has no authority as matter of law to make a finding of fact that the plaintiff brought this action prematurely because of non-compliance with the terms of the policy relative to the ascertainment and estimate of loss by appraisers or a finding of fact that the plaintiff brought this action too late.” The Court denied these requests, and of its own motion reported “the evidence and facts” set out in the report “to the Appellate Division for determination.of the following questions of law”: If it had authority so to [461]*461do under and by virtue of Chapter 231, section 8, of the General Laws (Ter.

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Bluebook (online)
5 Mass. App. Div. 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barton-v-automobile-insurance-massdistctapp-1940.