McDowell v. Ætna Insurance

Morton, J. The principal question in these cases relates to the admission of secondary evidence of the contents of certain letters which the court found were duly sent, postage paid, by the counsel for the plaintiff to the defendants, and their attorneys of record in these suits, and which according to the well settled rule in such cases were prima facie received by the persons to whom they were sent. Huntley v. Whittier, 105 Mass. 391. Briggs v. Hervey, 130 Mass. 186. Marston v. Bigelow, 150 Mass. 45. None of the originals were produced by the defendants. But there is nothing tending to show that they were not in fact received by them, or were not in their possession at the time of the trial. The notice to produce, which was dated Greenfield, April 13, 1895, and which was received by the attorneys of record of the defendants in regular course of mail, notified them “ to produce at the coming trial of the cases of Brice W. McDowell v. Ætna Ins. Co., Royal Ins. Co., Phœnix Ins. Co., in our Superior Court the present term here, all proofs of loss, written schedules, letters and communications or written memorandum of every kind, received by the above named companies defendant or by you as their attys., each and all of them, received from the said plaintiff or from his attys., at any time since the fire mentioned in the several declarations in said suits.” The notice required the production, therefore, among other things, of all letters relating to the subject matter of the suits received by the defendants or their attorneys from the plaintiff or his attorneys between January 1, 1894, and its date. It is objected in substance that the letters called for were not described in the notice with sufficient particularity. But we think that they were sufficiently described by the subject to which they related. Bogart v. Brown, 5 Pick. 18. Bemis v. Charles, 1 Met. 440. Jones v. Parker, 20 N. H. 31. Jacob v. Lee, 2 Mood. & [447] Rob. 33. Rogers v. Custanee, 2 Mood. & Rob. 179. Morris v. Hauser, 2 Mood. & Rob. 392. Vasse v. Mifflin, 4 Wash. C. C. 519. The time covered by the notice was only about sixteen months. There is nothing to show that the correspondence between the parties and their counsel was so extensive as to render it reasonable that the notice should describe the portions of it that were wanted, or that the letters were so mingled with others as to render it difficult to separate them. The object of requiring notice to produce the original before secondary evidence of contents can be given is to afford an opportunity to the opposite party to produce it, and thereby secure, if he desires, the best evidence of its contents. Dwyer v. Collins, 7 Exch. 639. In the present cases the defendants did not object that they were taken by surprise or that they did not understand what letters were meant, or that they wanted delay in order to enable them to produce originals. See Bogart v. Brown, ubi supra. We think that the ruling admitting the letters from copies was right. The defendants further contend that there was no sufficient evidence that before the actions were commenced they had waived the provisions in the policies requiring the amounts of the losses to be determined by arbitration. But by St. 1891, c. 291, § 1, it is expressly provided that an insurance company shall be deemed to have waived its right to arbitration under a policy in the standard form provided in this Commonwealth, (which these policies were,) if it does not within ten days after a written request to appoint referees under the provision for arbitration name three men, or if it does “not, within ten days after receiving the names of three men named by the insured under said provision, make known to the insured its choice of one of them to act as one of such referees.” The copies of letters put in by the plaintiff show that a request was made in writing by him of each of the defendants to appoint referees to determine the loss under its policy, and that the names of three persons to act as such referees were submitted. Neither of the defendants appears to have paid any attention to the requests thus made, and these actions were not brought till more than ten days after the requests were made. The defendants must be held, therefore, to have waived their right to have the amounts of the losses determined by arbitration. Exceptions overruled.