214 Mass. 421 | Mass. | 1913
This is an action upon a policy of insurance issued by the defendant to the plaintiff company insuring it “ against loss from the liability imposed by law upon . . . [it] . . . for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered by any person or persons whomsoever other than the employees of the Assured while within or upon the premises of the Assured at the location described in the Schedule, or the premises or ways adjacent thereto, by reason of the opera
From the agreed facts it appears that the plaintiff had lent an ice chest to one Samerjian to keep his milk in while purchasing milk from the plaintiff, and that pursuant to a notice from him to remove it the plaintiff sent a team with two of its employees to Samerjian’s store for that purpose; and it was not convenient just at that time to Samerjian to have it removed, and that he attempted to prevent the employees from removing it; but they ■ persisted in removing it and while doing so one of them struck Samerjian in the eye. The use of force by the employees was contrary to the directions of the plaintiff. Samerjian brought an action against the plaintiff to recover for the injuries thus sustained, and the plaintiff gave the defendant notice thereof and requested it to defend the same, which the defendant declined to do. While the action was pending the plaintiff compromised and settled it with Samerjian, having requested the defendant’s assent to such settlement, which the defendant refused to give, saying that it would not waive any of its rights under the policy. This action is to recover the amount so paid and the expenses to which the plaintiff was put for legal services and otherwise. It is agreed that the settlement made was a fair settlement of the plaintiff’s liability, if any, to Samerjian. It is also agreed that Samerjian never was an employee of the plaintiff and that his store where the assault took place was no part of the plaintiff’s premises.
We think that the finding for the defendant was right. The insurance is against liability imposed by law upon the plaintiff for damages on account of bodily injuries accidentally suffered
Extracts from a letter written by the plaintiff to the defendant and the defendant’s reply thereto were incorporated in a “supplemental agreed statement of facts.” The judge evidently understood this to be done for the purpose of showing a waiver on the part of the defendant of the provision limiting its liability to “damages on account of bodily injuries . . . suffered . . . while within or upon the premises of the Assured at the location described in the Schedule,” and found and ruled that there was “no such waiver,” and that “the defendant . . . [was] . . . not estopped from setting up said provision in defense of this action.” The plaintiff in effect now concedes that there was no waiver, but insists that the correspondence shows that both parties placed the same construction upon the policy for which it now contends, and that the defendant is bound thereby. But it can
The construction which we have given to the policy in regard to the places covered by it being decisive against the right of the plaintiff to recover, it is not necessary to consider whether the injury which Samerjian sustained from the assault was “accidentally suffered” within the meaning of the policy. See Mitchinson v. Day Brothers, [1913] 1 K. B. 603.
Judgment for the defendant.
Lawton, J.