Canton Institution for Savings v. Orient Insurance

15 N.E.2d 206, 300 Mass. 243, 1938 Mass. LEXIS 908

• Court: Massachusetts Supreme Judicial Court
• Decided: May 24, 1938
• Status: Published

Opinion

Qua, J.

The only question presented and argued by the defendant is whether in an action on a Massachusetts standard policy of fire insurance, where there is evidence that the fire was of incendiary origin, the burden of proof is upon the plaintiff to show that neither he nor any person for whose conduct he was responsible caused the fire.

This is not an open question. It is settled that the defence that the insured burned his building himself is an affirmative defence with the burden of proof upon the insurer. Richardson v. Travelers Fire Ins. Co. 288 Mass. 391. Schmidt v. New York Union Mutual Fire Ins. Co. 1 Gray, 529. Todd v. Traders & Mechanics Ins. Co. 230 Mass. 595, 600. See form of policy as set forth in G. L. (Ter. Ed.) c. 175, § 99, as amended, and form of declaration in G. L. (Ter. Ed.) c. 231, § 147, Forms, 10 (d). The rule is the same in other jurisdictions. See cases collected in Couch on Insurance, § 2220.

Exceptions overruled.