232 Mass. 246 | Mass. | 1919
The defendant insured the plaintiff against loss from liability imposed by law upon the plaintiff "for damages on account of bodily injuries” suffered by any person “not employed by the Assured, while at or about the work of the Assured and during the prosecution of the said work.” One Georgia Reed was injured on February 8, 1912, and recovered a verdict against the plaintiff. In this action the plaintiff seeks to recover the amount of an execution it was compelled to pay her, together with the amount expended by the plaintiff in the preparation and defence of the action. It was conceded that there was evidence from which the jury might infer "that the operation out of which the injuries to Georgia Reed,” hereinafter called the passenger, resulted, “was an operation covered by the terms of the policy.” The material questions raised by this bill of exceptions are:
First. Was there any evidence for the jury that the plaintiff gave to the defendant immediate written notice of the accident, according to the terms of the policy?
The policy provided that immediate written notice of any accident must be forwarded to the home office of the company or its authorized representative. Written notice of the accident was not given to the defendant by the plaintiff until November 12, 1912, the plaintiff’s contention being that, while its employees were at work where the passenger was injured and at once reported the occurrence to the plaintiff, the facts reported did not bring the passenger’s case within the terms of the policy and it did not know until November 8, 1912, that she claimed her injuries resulted from the negligence of the plaintiff’s workmen who were making repairs at the Sullivan Square terminal where she was injured.
Assuming that the plaintiff acted with due diligence in investigating the claim of the passenger and that at the time of the accident it had no means of knowing that she was injured by the negligence of its employees, or that she would make this claim, and acting on the reports received, the plaintiff was justified in supposing she was injured by falling against a permanent part of the elevated structure and the accident was not within the terms of the policy. There was evidence, however, from one of its investigators that he knew the passenger claimed to have been injured by the negligence of the plaintiff’s workmen several months before the written notice was given. This investigator called on the passenger either in February or March, 1912, and the claim was then made by her that it “was a piece of carelessness on the company’s part to have two men working on pipes and leave them in such a condition that people would fall over them,” and she informed the investigator at this interview that she fell over these pipes. His report came to the attention of the claims attorney. When this report was made, although contrary to the facts previously reported by the plaintiff’s witnesses, the plaintiff knew that the passenger was claiming to have been injured in such a way as to impose liability upon the insurance company, under the terms of the policy.
The contract between the parties was clear and explicit. It required immediate written notice of any accident and the giving of this notice was a condition precedent to recovery. When the
In addition to this the passenger alleged in her declaration, which was filed in court in April, 1912, that, while proceeding through the Sullivan Square terminal she “ tripped and fell over a large box which had become detached from the wall and was lying in the middle of the floor.” The plaintiff also knew from the report of one of its workmen who was present when the passenger was injured, that he was at the time moving a wooden box on the platform, which had been taken from an iron column. In its interrogatories to the passenger, filed in September, 1912, it asked for information as to how far from the wall the detached box was lying, and in her answer to these interrogatories, which answer was filed in October, she described the size, shape and material of the box and stated it was about two feet away from the wall and struck her below the knees. In her substitute declaration filed in October, she alleged that by the negligence of the defendant’s servants or agents “she was caused to fall by being struck by a large box which had become detached from the wall.” This declaration came to the attention of the attorney for the plaintiff, between October 7 and November 1.
Without reviewing all the evidence in detail, it shows very clearly that for months before the written notice was given the defendant insurance company, the plaintiff knew that the passenger’s claim would bring her case within the terms of the policy. The plaintiff failed to comply with its terms. It practically gave up its right to hold the defendant, and the notice of November 12, 1912, was not an immediate notice as required by the contract of the parties.
The plaintiff contends that the insurer waived the condition of the policy requiring immediate notice. To support this contention it relies on the evidence of Frederick M. Ives, the attorney who represented the defendant in the case of Reed v. Boston Elevated Railway.
There can be no waiver of a right unless the right is known and it was intended to surrender it. National Construction Co. v. Travelers’ Ins. Co. swpra. Rooney v. Maryland Casualty Co. 184 Mass. 26. Even if Garner, as general manager of its Boston office, had authority, which we do not decide, to waive the condition of the policy requiring immediate notice, it is not shown that he agreed or consented to such waiver. There is some evidence that a representative of Garner’s office talked with the plaintiff’s chief investigator after the notice of November 12 was sent to the defendant. Even if this evidence were sufficient to show when Garner talked with Mr. Ives he knew that no notice had been sent to the home office and that the plaintiff was ignorant of the passenger’s contention until a day or so before the notice of November 12 was sent, there is nothing in the evidence from which it
Exceptions sustained.