296 Mass. 507 | Mass. | 1937
The plaintiff brings this action as beneficiary under a policy insuring her husband, Benjamin S. Thompson, now deceased, against "loss from death or disability , , , resulting directly and solely from bodily injury, inde
One of the “Standard Provisions” of the policy reads as follows: “4. Written notice of injury or of sickness on which claim may be based must be given to the Company within twenty days after the date of the accident causing such injury or within ten days after the commencement of disability from such sickness. In event of accidental death immediate notice thereof must be given to the Company.” See G. L. (Ter. Ed.) c. 175, § 108. Among “Miscellaneous Provisions” is this: “Failure to comply with all the terms and conditions of this policy shall bar all right to recover on any claim made hereunder.”
The plaintiff must fail unless she has sustained the burden of proving that notice was given as required by paragraph “4” of the “Standard Provisions” or that such notice was waived. Wilcox v. Massachusetts Protective Association, Inc. 266 Mass. 230, 234. Sheehan v. Commercial Travelers Mutual Accident Association, 283 Mass. 543, 549. We assume, but without intending to intimate any opinion upon the point, that the “immediate notice” required in the event of accidental death may be merely oral, and that any form of words which convey the necessary information will suffice. But notice of death alone is not enough. The policy is not a life insurance policy. It insures against death resulting from accident, and the notice which is expressly required is notice of “accidental death.” At least the notice must be such as under the existing circumstances will by fair construction inform the company that the insured has met death through accident.
As tending to show oral notice of accidental death the plaintiff relies upon informal conversations shortly after the death with several persons claimed to have authority to receive notice in behalf of the company. If we assume that those conversations were sufficiently near to the time of death, that the persons with whom they took place were
There was no evidence of waiver of the requirement of notice by any representative of the company. Sheehan v. Commercial Travelers Mutual Accident Association, 283 Mass. 543, 550. Moreover the policy provides that no agent shall have authority to waive any of its provisions, and there was no evidence of any delegation of power from the corporation itself to override this limitation. This subject is discussed at length in Blair v. National Reserve Ins. Co. 293 Mass. 86.
As the want of notice required the direction of a verdict for the defendant, we have not considered other questions.
Exceptions overruled.