279 Mass. 523 | Mass. | 1932
This is an action upon a policy of accident insurance brought by the administrator of the assured against the insurer. The assured while riding in an automobile was struck and killed by a railroad train at a highway crossing on May 5, 1928. Death was almost instantaneous. The policy was payable to the estate of the assured. Its terms required that notice of loss be sent immediately to the office of the insurance company, and that proofs of loss be furnished within ninety days of the loss. The essential question is whether these conditions were fulfilled. The case is before us upon exceptions claimed by the company to the refusal of the trial judge to find for the defendant, to his refusal to grant the following requests for instructions: “1. Upon the pleadings and the evidence the plaintiff is not entitled to recover”; “4. Proof of loss can be made only by the administrator of the estate of the insured Maskas”; “5. Any proof of loss made prior to the appointment of an administrator is void, and of no effect”; and to his granting the request “2. The plaintiff cannot recover without proving that affirmative proof of loss was furnished to the defendant within ninety days after the death of Maskas” with the addition “unless proof of loss waived.”
There was evidence as follows: On May 8, 1928, the
The defendant has admitted throughout that it had sufficient notice of the loss. It contends that the condition which required proof of loss within ninety days has never been met. We think it is right. The law with reference to performance of conditions in an insurance policy need not be restated. The policy was payable to the estate of the assured. Proof must be made by the person entitled to the payment. See Bickford v. Furber, 271 Mass. 94; Sterling v. Frederick Leyland & Co. Ltd. 242 Mass. 8; Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625. That person was the administrator. Although no administrator was appointed until after the ninety days after the loss had expired, it was possible to secure the appointment of a special administrator as soon as a petition for administration was filed. Such special administrator could have made proofs of loss which would have met this requirement of the law. No special administrator was appointed. In view, however, of the finding that the letter enclosing affidavit of the petitioner for administration was received by the defendant, we think it could have been found, properly, that proof was made by the administrator before August 3, if the affidavit constituted proof. The authority of the administrator when appointed related to the date of the death, and action taken by him in the intervening period would become valid. Taylor v. Woburn, 130 Mass. 494, 497. Since a special administrator could have been appointed, we think the fourth and fifth requests
We see no evidence of waiver by the defendant. It sent proofs upon receipt of notice. It informed the later inquirer of what it had done. It called attention to the need of proof by a proper representative of the assured’s estate, and to the requirements of the policy. In no word did it mislead Mr. Eliades or lull him to inaction. After the expiration of the ninety days, it made no suggestion that it was not standing upon its rights. On the contrary it insisted upon them. It was not bound to state objections to the affidavit, if ever received. There is no estoppel since no action was taken by the plaintiff in reliance on its silence. We think the evidence too slight to sustain a finding of waiver. The addition made to the defendant’s second request was not justified. It was error.
The defendant was justified- in acting upon the notice given by Mr. Cavan. It is not open to the plaintiff to disavow that notice. It must rely upon it, or else fail for want of immediate notice of loss. As already stated, the plaintiff and his representative Mr. Eliades had knowledge long before the expiration of the ninety days that blank forms of proof of loss furnished in response to notice from the plaintiff were in the hands of Mr. Cavan. The defendant is not responsible for their failure to obtain
We see no merit in the contention addressed to us by the plaintiff that the bill of exceptions fails to set forth “in a summary manner” what took place at the trial. His motion to dismiss the bill is denied.
It follows that the exceptions must be sustained.
Exceptions sustained.