Aisenberg v. Royal Insurance

Rugg, C.J.

This is an action of contract upon a policy of insurance issued by the defendant to one Hildreth, who *545 assigned to the plaintiffs all his rights to claims arising thereunder. Copy of the policy is annexed to the declaration. In general Hildreth by the policy was insured against certain losses arising in conducting a trucking business. Specifically it was agreed that the policy should apply on merchandise of the insured’s own or held by the insured “in trust or on consignment or on commission while on board” designated motor vehicles “against the risks of . . . theft of an entire shipping package.” Further averments of the declaration are that while the policy was in force the plaintiffs shipped by the insured large quantities of merchandise; that while in transit on motor vehicles of the insured described in the policy “certain parts of said merchandise” were stolen therefrom; that the plaintiffs recovered judgment therefor against the insured, who assigned to the plaintiffs his rights against the defendant under the policy; that demand for payment was made upon the defendant; that “all the terms of said policy have been complied with on the part of” the insured and the plaintiffs.

The defendant demurred to the declaration.

The policy contained a clause entitled “Notice and Proof of Loss.” This clause does not differ in substance and effect from the similar clause in the standard form of fire insurance policy in G. L. c. 175, § 99, and varies from it so far as here material only in particulars required by the differences in risks insured against. A clause of that character often has been held to be a condition precedent. Boruszewski v. Middlesex Mutual Assurance Co. 186 Mass. 589, 590 , and cases there collected. Parker v. Middlesex Mutual Assurance Co. 179 Mass. 528, 530 . See Larner v. Massachusetts Bonding & Ins. Co. 238 Mass. 80, 82 . Shapiro v. Security Ins. Co. 256 Mass. 358, 365 . Since it is a condition precedent, it must be averred specifically in the declaration that it was performed or want of performance excused. A general allegation of compliance with the terms of the policy is not sufficient. G. L. c. 231, § 7, Twelfth. Newton Rubber Works v. Graham, 171 Mass. 352 . Palmer v. Sawyer, 114 Mass. 1, 13, 14 . Marsch v. Southern New England Railroad, 230 Mass. 483, 490 . Fried v. Singer, 242 Mass. 527, 532 . *546 See also G. L. c. 231, § 147, Form 10(d). Absence of this necessary averment from the declaration is proper ground for demurrer. Lamson Consolidated Store Service Co. v. Prudential Fire Ins. Co. 171 Mass. 433 . Harris v. North American Ins. Co. 190 Mass. 361, 373 . See Second Society of Universalists v. Royal Ins. Co. Ltd. 221 Mass. 518, 527, 529 .

It follows that the first two and eighth grounds of demurrer, to the effect that a cause of action is not set out as required by law, must be sustained.

The third ground of demurrer, to the effect that the declaration is misleading and does not give reasonable information, we do not interpret as meaning the same as the two preceding grounds. Standing alone, it does not point out defects in the declaration. If further information is desired, the provisions of G. L. c. 231, § 61, concerning interrogatories, would afford the defendant opportunity to secure ample information.

There was a clause in the policy to the effect that action on the policy must be brought within "twelve (12) 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 no such action should be "sustainable unless commenced within the shortest limitation permitted under the laws of such State.” This is a contractual limitation as to time on the right of action. It •is not a condition precedent. It stands on no firmer footing than an ordinary statute of limitations. Castaline v. Swardlick, 264 Mass. 481, 484, 485 . It must be pleaded by way of defence and cannot successfully be made grbund for demurrer in an action at law. Hodgdon v. Haverhill, 193 Mass. 327, 330 . McRae v. New York, New Haven & Hartford Railroad, 199 Mass. 418, 419 . Miller v. Aldrich, 202 Mass. 109, 113 . G. L. c. 231, § 28, and § 147, Form 28. The rule in equity is different. Quinn v. Quinn, 260 Mass. 494, 497 . The fourth ground of demurrer is not well taken.

The fifth ground of demurrer, to the effect that the declaration does not allege by whom the thefts were committed, is not sound. There is no requirement that allegations of that nature must be in the declaration.

*547 The sixth ground of demurrer is that the declaration fails to allege that the thefts which occurred were of entire shipping packages. The indemnity provided in the policy in this respect was for “theft of an entire shipping package.” There ought to have been an allegation adequate to show that the thefts were of the nature covered by the policy. This ground of demurrer is good.

The allegations of the declaration are sufficient to the effect that the thefts occurred from motor vehicles of the insured under conditions covered by the policy. There is nothing in the seventh ground of demurrer. Davis v. H. S. & M. W. Snyder, Inc. 252 Mass. 29, 34, 35.

Order sustaining demurrer affirmed.