PAUL HOLICH vs. THE GLOBE AND RUTGERS FIRE INSURANCE COMPANY.

CARROLL, J. This is an action of contract on a policy of insurance against damage by "Hail, Windstorm and/or Tornado to 14 acres of tobacco plants" in North Hatfield. The policy was subject to the conditions and stipulations "endorsed hereon or attached hereto which are hereby made part of this policy; and no officer, agent or other representative of this Company shall have power to waive any provision or condition of this policy except such as by its terms may be the subject of agreement endorsed hereon or attached hereto; and as to such provisions and conditions, no officer, agent or other representative of the Company shall have such power or be deemed or held to have waived or changed such provisions or conditions unless such waiver or change shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached." The stipulations and conditions provided that "within sixty days after the date" of the damage the insured should give to the company or its State agents a sworn statement in writing specifying the acreage damaged, the interest of the insured therein and other details. This sworn statement of loss was not given the insurer. The only sworn statement was given in January, 1922, about seven months after the date of the storms.

The case was referred to an auditor, whose findings of fact, it was agreed, should be final. He found that the plaintiff's crop covered by the policy was damaged by hail and windstorm to the extent of $1,337.50; that in consequence of information which came to the defendant, it sent its adjuster to the plaintiff on three occasions; that the adjuster, a man of experience in adjusting losses, discussed

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with the plaintiff "a settlement: made the plaintiff an offer . . . [and] offered to have the tobacco appraised," the policy providing that in the event of disagreement as to the amount of damage the same at the written request of either party should be ascertained by appraisal. It was further found that neither party made such written request, that the plaintiff, "awaiting the naming by the defendant of an appraiser," delayed filing a sworn statement of proof of loss; that the defendant was in no way harmed by the failure to furnish the proofs of loss as required by the policy within sixty days; that compliance with this condition could be waived by the defendant; and that the plaintiff was justified in assuming from the statements of the adjuster that the defendant had waived this condition. The auditor states: "From all of the foregoing, I find as a fact that the defendant did waive the condition requiring the plaintiff to furnish within sixty days a sworn statement." In the Superior Court it was ordered that judgment be entered for the defendant. The case was reported to this court.

The facts found did not support the finding that the defendant waived the condition of the policy providing for the written proofs of loss. The adjuster had no authority to waive this provision, and there is nothing in the subsidiary findings to warrant a finding that he was authorized to do so. The performance of the provision that proof of loss in writing and under oath should be given within sixty days after the loss was a condition precedent to recovery by the plaintiff, and unless waived by the company or by its agent duly authorized the plaintiff could not recover. The case is governed by Rockwell v. Hamburg-Bremen Fire Ins. Co. 212 Mass. 318, Larner v. Massachusetts Bonding & Ins. Co. 238 Mass. 80, and Paulauskas v. Firemen's Fund Ins. Co. 254 Mass. 1.

In Rockwell v. Hamburg-Bremen Fire Ins. Co. supra, agents of the defendants went to the insured for the purpose of agreeing upon the amount of loss or, failing in this, "to have such amount determined by referees" according to the terms of the policy. It was said, at page 321, "That

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was their errand and they had no other. Whether the defendants had any ground upon which to contest their liability upon the policy, or whether having it they would waive it, was something about which these agents had no duty to perform nor power to act." In Larner v. Massachusetts Bonding & Ins. Co. supra, the policy provided for proofs of loss under oath, on forms provided by the company, within sixty days. It was held that performance of this provision was a condition precedent to the plaintiff's right of recovery.

The plaintiff relies on Shapiro v. Security Ins. Co. 256 Mass. 358. In that case proofs of loss were not furnished. There was evidence that when the loss was reported to the defendant, it placed the adjustment of the loss in the hands of an adjuster who made a full report; that the company refused to pay on the ground that the loss was not one recoverable under the policy. In the course of the opinion, at page 366, it was stated: "It is generally held that a denial of liability or a refusal to pay not predicated on the failure to furnish proofs is a waiver of any objection on that ground." In the case at bar there was no evidence of waiver, and nothing to show that the adjuster had authority to waive, nor that the defendant placed its refusal to pay on any ground other than the plaintiff's neglect to furnish proofs of loss as the policy required.

G. L. c. 175, § 102, is limited to.losses under fire insurance policies and is not applicable here. Whether this provision should be extended to other forms of insurance is for the Legislature to determine.

Judgment for the defendant.