230 Mass. 35 | Mass. | 1918
This is a bill in equity under St. 1914, c. 464, to recover against the Travelers Insurance Company a judgment debt which the plaintiff previously had obtained against the defendants Rendle and Stoddard in an action at law.
■ It was agreed at the trial that the Travelers Insurance Company had on January 6, 1915, in full force and effect a policy of liability insurance insuring Rendle and Stoddard, a co-partnership, from loss or damage caused by injuries to the public for which they might be liable, and that this policy covered the liability of Rendle and Stoddard for the accident to the plaintiff. The policy contained the following provision: "This agreement is subject to the following conditions:. . . D—The assured upon the occurrence of an accident shall give immediate written notice thereof to the Company, or to its duly authorized Agent, with the fullest information obtainable. He shall give like notice with full particulars of any claim made on account of such accident. . . .” The presiding judge found as a fact that there was no waiver, and at the request of the Travelers Insurance Company reported the case to this court to determine whether "upon my findings of facts, my ruling that the requirements of the policy respecting notice have been complied with, is correct.”
The question presented is whether the fact, found by the judge, that “they [Rendle and Stoddard] assumed, . . . and had a right to assume, from the fact that McCarthy was back upon his job and made no complaint that his injury was trifling,” was a sufficient justification as a matter of law for their failure to give notice of “the occurrence of an accident” for a period of at least fifteen days after “they learned of the occurrence from their foreman.”
Within the week after January 6, 1915, and between January 14 and 28, 1915, when they gave notice of the accident to the
If we assume that the first knowledge of the “occurrence of an accident” which the insured had was on January 13, 1915, the last day of the week following the accident, the condition of the policy required that they should then “give immediate written notice thereof to the Company.” Notice was not given until January 28, 1915. It is not contended that the failure to comply
We are of opinion that the ruling was wrong as a matter of law, and in accordance'with the terms of the report a decree must be entered dismissing the bill with costs as to the defendant insurance company.
Decree accordingly.