Patterson v. Triumph Insurance

Walton, J. This is an action upon a policy of insurance against fire. By consent a verdict was taken for the plaintiffs, which is to stand if upon the evidence, or so much of it as is legally admissible, the full court is of opinion that the action is maintainable. I. It is objected that the action cannot be maintained in the names of these plaintiffs because the loss, if any, was made payable to a third party. No authority is cited in support of this proposition, and the contrary seems to be well settled. Farrow v. Commonwealth Ins. Co., 18 Pick., 53. II. It is objected that the proofs of loss furnished the defendants were defective. This objection comes too late. It is now well settled that when a defective notice of loss is received by an insur [504] anee company, they must immediately inform the insured of the supposed defects, and insist upon more formal proofs, or the defects will be regarded as waived. No such information appears to have been given the insured in this case. The defects, if any, must therefore be regarded as waived. Bartlett v. Union Mutual Ins. Co., 46 Maine, 500; Walker v. Metropolitan Ins. Co., 56 Maine, 371. III. The third and last objection to the maintainance of the suit is that the claim was referred before action brought, and that the action should have been upon the award and not upon the policy. We fail to find the evidence of such á submission and award as would be binding upon the parties. It appears that there was an appraisal of the amount of the plaintiffs’ loss, made by a Mr. Chapman, and that this was done by agreement of the plaintiffs and a Mr. Whittaker who was acting as an adjuster for the defendants. But there is no proof that the parties agreed to be bound by the reference; and it was settled in Houghton v. Houghton, 37 Maine, 72, that such proof is necessary to make the award a bar to an action on the original claim, when, as in this case, the submission is by parol. Nor is there any evidence that Whittaker was authorized by the defendants to submit the claim to arbitration. Nor is there any evidence that either Whittaker or the defendants were willing to be bound by the decision of the referee. On the contrary it appears that they declined to abide by it, or to pay the amount awarded. We think it is therefore clear that the supposed arbitration of the claim in suit is no bar to this action. These are all the objections made by the learned counsel for the defendants to the maintenance of the suit. In the opinion of the court none of them are tenable. Upon the evidence legally admissible in the case, the court is of opinion that' the action is maintainable. The verdict must therefore stand, and judgment be rendered upon it. Judgment on the verdict. Appleton, C. J., Dickerson, Barrows, Virgin and Peters, JJ., concurred.