Smith & Dove Manufacturing Co. v. Travelers' Insurance

171 Mass. 357 | Mass. | 1898

Holmes, J.

This is an action upon a policy of insurance against loss from liability to employees injured in the course of their employment. There is no dispute that a loss happened that was within the policy, and the only defence is that the plaintiff did not give the defendant “ immediate written notice ” of the accident, as required by a proviso of the contract. The accident happened on May 28,1895, and was at once known and inquired into by the plaintiff’s manager, whose duty it was to send the defendant the notice required. But his intention to send notice was interrupted by a strike, which gave him a great deal of trouble, and to which the details of management were subordinated, but, as he very candidly testified, without being wholly given up. The result was that he forgot the notice, or assumed that it had been sent, and that he failed to send it until June 24. These are the facts, and we are of opinion that they show neither a compliance with the condition nor an excuse for not complying with it, even under most of the cases cited in the decision of the majority in Harnden v. Milwaukee Mechanics’ Ins. Co. 164 Mass. 382. It is impossible to say that notice after a month’s delay, due only to the forgetfulness of the agent in charge, is an “ immediate notice ” in any sense. If the word “ immediate ” is satisfied by the use of reasonable diligence on the part of the insured, such diligence is not made out by evidence that an agent upon whom he relied to give notice had a paramount but not exclusive interest in his head which drove out the contract’s requirement and made him forget it. Railway Passenger Assurance Co. v. Burwell, 44 Ind. 460, 463, 464. Whitehurst v. North Carolina Ins. Co. 7 Jones, (N. C.) 433. Trask v. State Ins. Co, 29 Penn. St. 198. Edwards v. Lycoming County Ins. Co. 75 Penn. St. 378. Inman v. Western Ins. Co. 12 Wend. 452, 460.

Judgment on the verdict.