PARKER v. MIDDLESEX MUTUAL ASSUR. CO

Insurance, Fire, Sworn statement to be "forthwith rendered." Buildings insured against fire under a policy in the Massachusetts standard form were destroyed by fire on October 3. The sworn statement required to be "forthwith rendered to the company" was mailed to it by the assured on December 8, and was received on December 10 or 12. The assured was a woman whose husband was "somewhat of an invalid." On October 7, she was called to visit a sick grandchild who died on October 9. The severe illness of the child's mother detained her until the latter part of October. She returned to a village near her destroyed home and remained until the day after election in November. She then moved to another State and was ill there for about two weeks. In an action on the policy, it was held, that there was no evidence that would warrant a jury in finding that she used due diligence in sending the statement as soon as she reasonably could, which was a condition precedent to recovering on the policy. Assuming that the illness and death of the plaintiff's grandchild, the illness of her daughter and her own illness excused her from doing anything about preparing and sending the statement during the entire period of each illness, there was nothing to show that she used due diligence to send the statement during the intervals. Harnden v. Milwaukee Mechanics' Ins. Co. 164 Mass. 382 explained.

KNOWLTON, J.

The principal question in these cases is whether there was any evidence on which to rest a finding that the plaintiff complied with the requirement in each of the policies that in case of loss "a statement in writing, signed and sworn to by the insured, shall be forthwith rendered to the company, setting forth the value of the property insured, the interest of the insured therein, all other insurance thereon," etc. That such a requirement is valid, and that compliance with it is a condition precedent to a right to recover, is unquestioned.

The fire occurred on October 3, 1898. No such statement in writing was rendered to either defendant until December 8, 1898. On that day the statements were mailed, one of which was received on December 10 and the other on December 12. The true meaning of such a requirement in a policy is that the statement shall be sent as soon as the exercise of reasonable diligence will enable the assured to send it. When it is contended that a statement was not sent in time under such a requirement, the inquiry always is whether the insured, whose duty it was under the contract to send the paper as soon as he reasonably could, has used due diligence to send it promptly. If there is no dispute in regard to the facts, what is due diligence is a question of law for the court. Smith Dove Manuf. Co. v. Travelers' Ins. Co. 171 Mass. 357. Kimball v. Howard Ins. Co. 8 Gray, 33. Smith v. Newburyport Ins. Co. 4 Mass. 668. Howland v. India Ins. Co. 131 Mass. 239. Bennett v. Lycoming County Mutual Ins. Co. 67 N.Y. 274. Mispelhorn v. Farmers' Ins. Co. 53 Md. 473. Insurance Co. of North America v. Brim, 111 Ind. 281. The decision in Harnden v. Milwaukee Mutual Ins. Co. 164 Mass. 882, rests in part on matters which are recited in the opinion, as follows: "Subsequently the defendant . . . agreed that, if the first proof of loss was delivered to Breed with a promise on his part that he would forward it, the jury might find for the plaintiff. . . . It would seem as though counsel for the defendant did not care to argue that, under the circumstances, due diligence had not been used by the plaintiff in rendering the statement, if one was rendered the last of January, but preferred to rest on the contention that the first proof was not delivered to Breed at all." In considering the effect of this case as an authority, these recitals should be kept in mind.

Giving full effect to all the evidence relied on by the plaintiff to excuse the delay in sending the statements, and treating it as literally true, we are of opinion that there is nothing in it which would warrant the jury in finding that she used due diligence to send them as soon as she reasonably could. The judge rightly ruled that there was no evidence to show that either of the defendants waived its right to have the statement sent according to the terms of the policy. The plaintiff was bound to know, and the evidence tends to show that she did in fact know, the terms and legal effect of this requirement in the policy. She waited sixty-six days after the fire before mailing a statement of loss to either company. She relies upon the illness of her grandchild, and his death which occurred on October 9, and the illness of the child's mother, which was such that she did not think it prudent to leave her until the latter part of October, and her own illness for about two weeks in the middle or last part of November, as reasons for failing to send the statements of loss earlier. If we assume in favor of the plaintiff, without deciding, that the illness and death of her grandchild and the illness of her daughter and her own illness excused her from doing anything about the business of preparing and sending the statements during the entire periods in which there was any illness of either of them, there is no evidence to show that she used due diligence to send the statements during the intervals when, so far as appears, she easily could have prepared and sent them. No circumstances are testified to which show a sufficient reason for neglecting her duty in this particular for so long a time. Such neglect for a much shorter period has often been held fatal to the right of the insured to recover. Swain v. Security Live Stock Ins. Co. 165 Mass. 321, 323. Smith Dove Manuf. Co. v. Travelers' Ins. Co. 171 Mass. 357. Trask v. State Fire Marine Ins. Co. 29 Penn. St. 198. Inman v. Western Ins. Co. 12 Wend. 452. Quinlan v. Providence Washington Ins. Co. 133 N.Y. 356. Brown v. London Assurance Co. 40 Hun, 101. Whitehurst v. North Carolina Mutual Ins. Co. 7 Jones, (N.C.) 433. Railway Passenger Assurance Co. v. Burwell, 44 Ind. 460. LaForce v. Williams City Ins. Co. 43 Mo. App. 518.

The question whether there was due diligence has been submitted to a jury in cases where the evidence was doubtful or conflicting, and where, upon the view of it most favorable to the plaintiff, the court would find due diligence. See Home Ins. Co. v. Davis, 98 Penn. St. 280; Carpenter v. German American Ins. Co. 135 N.Y. 298; Donahue v. Windsor County Mutual Ins. Co. 56 Vt. 374.

While some of the evidence objected to was not competent as having any binding effect against the defendants, we have assumed that it might be considered for what it was worth, as a part of the history of the plaintiff's situation and circumstances, so far as it had any tendency to throw light on the question whether she acted with due diligence.

Exceptions sustained.