289 Mass. 384 | Mass. | 1935
This is a bill in equity under G. L. (Ter. Ed.) c. 175, §§ 112, 113, and c. 214, § 3 (10), to reach the obligation of the defendant insurance company under a compulsory motor vehicle liability insurance policy, issued to the defendant Senibaldi, and to apply such obligation to the satisfaction of a judgment recovered by the plaintiff against the defendant Senibaldi.
It was agreed “that the defendant Senibaldi and his automobile were involved in an accident on August 20, 1931, in which the plaintiff suffered personal injuries for which
The report of facts discloses that Senibaldi arranged for said policy through the William A. Muller Investment Corporation and gave it a note for the premium of $39.60, dated April 3, 1931, payable $3 down, and the balance in five instalments of $7.32 each, the first payable April 10, 1931, and monthly thereafter. Senibaldi made the April and May payments but no other payments. The policy had been deposited with said corporation as collateral security for the payment of said note “with express and irrevocable power, in case of any default on the part of the maker . . . hereof, to cancel said policies in the name and stead of the insured.” Upon default in the June instalment, said corporation on June 18, 1931, turned the policy over to the defendant insurance company for cancellation. On June 19, 1931, the latter sent by ordinary mail a cancellation notice in a form prescribed by the registry of motor vehicles to said registry and like notice to Senibaldi addressed to him at his address given in the “Declarations” that form part of the policy. In these notices, Senibaldi is spelled ‘' Senebaldi ’ ’; the policy and automobile are described correctly but the registration number is not stated, although a blank space for this information headed “Registration No.” appeared in the form prescribed by the registry and employed by the insurer; the effective date of cancellation stated was “July 5, 1931,” and the reason for cancellation ■given was “at the request of the assured.” The trial judge found “as a fact that the notices of cancellation were received respectively by the registry and Senibaldi on June 20, 1931”; that no “'notice of intent to revoke,’ and no notice of revocation of, Senibaldi’s registration was given him by the registry until December 2, 1931”; that on “that date such notices were sent him, the first dated
The judge stated that “The only question at issue between the parties is as to whether or not the policy had been cancelled prior to the accident.” He ruled (1) “that notice of cancellation to be effective was not required to be given by the insurer to the insured by registered mail, if mail were employed as the means of giving notice, and that a written notice in the form stipulated was sufficient if received by the insured seasonably”; (2) “that the notice of cancellation above described was given by the insurer to the insured 'at least fifteen days prior to the intended effective date thereof’ ”; (3) “that the notice of cancellation above described was defective in that the name of the insured was misspelled and it failed to give the registration number of the motor vehicle covered by the policy, and that said notice was not effective in cancelling the policy”; and (4) that, in view of the facts and findings hereinbefore set forth, “the plaintiff is entitled to reach and apply in satisfaction of said judgment debt the obligation of the defendant insurance company to said Senibaldi arising out of said policy.” A final decree was issued in conformity with said findings and rulings. The case is before this court on the appeal of the Glens Falls Indemnity Company,
It is provided by G. L. (Ter. Ed.) c. 175, § 113A (2), that “no cancellation of the policy, whether by the company or by the insured, shall be valid unless written notice thereof is given by the party proposing cancellation to the other party and, except when the intended effective date thereof is the date of expiration of the registration of the motor vehicle or trailer covered by the policy, to the registrar of motor vehicles in such form as the department of public works may prescribe, at least fifteen days in each case prior to the intended effective date thereof . . . . ”
A notice of cancellation of insurance must be definite and certain. Bessette v. Fidelity & Casualty Co. 111 Conn. 549, 556. Conditions imposed with respect to giving notice must be strictly complied with. B. & B. Trucking, Inc. v. Home Fire & Marine Ins. Co. 125 Misc. (N. Y.) 312; affirmed 216 App. Div. (N. Y.) 710; 243 N. Y. 558. See Michelson v. Franklin Fire Ins. Co. 252 Mass. 336, 340. The notice in the case at bar was not in such form as the department of public works had prescribed, in the following particulars: (1) The correct name of the insured was not given. The insured’s name was Senibaldi; the notice had the name “Senebaldi.” The name, while perhaps idem sonans, was incorrect, and the misspelling of it might mislead the registrar of motor vehicles in checking the registration number of the automobile ; (2) no registration number was given though there was a blank space for this information on the prescribed form of notice for cancellation. The necessity of giving the name accurately spelled is apparent in the absence of giving the registration number. The defects in the cancellation notice are of substance, not formal. They are the only method of indexing which the law requires the registrar of motor vehicles to use. G. L. (Ter. Ed.) c. 90, § 2. The purpose of the notice of cancellation of a policy of compulsory motor vehicle liability insurance is to apprise the registrar of motor vehicles that the insurance on a particular automobile registration is intended to be cancelled. The requirement that the notice be given ‘ ‘ in such form as the department of public
Decree affirmed.
