266 Mass. 230 | Mass. | 1929
This is an action of contract, brought by the plaintiff as beneficiary named in an insurance policy issued by the defendant company to her husband, Harry L. Wilcox, on January 9, 1924, insuring against loss resulting "from (1) bodily injuries effected directly and independently of all other causes by accidental means (excluding self-destruction, or any attempt thereat, while sane or insane); and (2) disability from disease.” By the terms of the policy the beneficiary was entitled to receive $5,000, the principal sum under it if the injuries received by the insured resulted in death, within ninety days of the accident. Section four of the "Standard Provisions” reads: "Written notice of injury or of sickness on which claim may be based must be given to the Association 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 Association.” Section five reads: "Such notice given by or in behalf of the insured or beneficiary, as the case may be, to the Association at its Home Office, Worcester, Massachusetts, or to any authorized agent of the Association, with particulars sufficient to identify the insured, shall be deemed to be notice to the Association.. Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.” Section six reads: "The Association upon receipt of such notice, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not so furnished within fifteen days after the receipt of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, character and extent of the loss for which claim is made.” Section eight reads: "The Association shall have the right and opportunity to examine the person of the in
On this branch of the bill of exceptions the jury were warranted in finding the following facts: On July 14, 1924, the insured, Harry L. Wilcox, was a machinist or engineer on a seagoing tug in the Charlestown Navy Yard. About noon on that day, accompanied by his daughter, he went to and sat down in the Scollay Square Olympia Theatre for about an hour. He then started to go out from the theatre, walked up the aisle, turned to see if his daughter was following him, caught his heel in the carpet and fell backward, striking the back of his head with a “dull thud.” He was taken to a relief hospital and finally to the Chelsea Naval Hospital, where he remained until his death on July 22, 1924. On July 19,1924, just before an operation, he wrote his name on a notice of disability claim which was addressed to the defendant and afterward received by it on July 21, 1924. The blank spaces in the body of the notice were filled in by the plaintiff and by one of the attending physicians at the hospital, and the defendant was thereby informed of a claim by the insured for disability resulting from a fall and from an ulcer. On July 24, 1924, the defendant sent the insured a “preliminary form of disability” claim. The blanks of this form were filled in by the plaintiff and the executed instrument was mailed by her to the defendant from Newport, Rhode Island, on July 27, or shortly thereafter, and was received by the defendant August 2, 1924. The insured died at 3:30 a.m. on July 22, 1924. After his death a physician at the hospital performed an autopsy. Funeral services were held in Chelsea, on July 23, 1924, and at six o’clock in the evening the body was taken by train to Washington, D. C. On Thursday, July 24, 1924, in the afternoon, services were held in the Arlington Cemetery, where the remains were
The death certificate admitted in evidence stated that the disease or cause of death was intestinal hemorrhage and duodenal ulcer. The policy did not cover death from disease, and it was the contention of the plaintiff that the insured’s death was caused solely by accidental means, whereas the defendant contended that the death was due to disease.
The plaintiff must fail in the action unless the notice required by the policy was given. Hatch v. United States Casualty Co. 197 Mass. 101, 103. McCarthy v. Rendle, 230 Mass. 35, 39.
Assuming that the notice given by the deceased was sufficient to inform the defendant of an injury from accident, it does not meet the requirements of § 4 of the policy for immediate notice in case of “accidental death,” unless those words were intended to be limited in their meaning to a death which follows upon and is the direct result of an accident as distinguished from death following upon a period of disability. G. L. c. 175, § 108, provides in part that no policy of insurance against loss or damage from disease or by the bodily injury or death by accident of the insured shall be issued or delivered in this Commonwealth unless it contains in substance a “provision specifying the time within which notice of accident or disability shall be given,
It is of some significance that in the section of the statute to which reference has been made the expressions “accidental death,” and “death by accident,” seem to be used with the same meaning. The policy on which this action is founded provided indemnity for loss of fife, and for specified disabilities of various descriptions arising from accident or disease. The schedule of payments due under the policy is stated in some detail and varies with the severity of the accidental injury and the length of the sickness. The language of section four of the policy seems to mean that where there is disability arising from accident or disease notice may be given within twenty and ten days respectively and that when death results from accident “immediate notice” must be given. The purpose of notice in case of disability is to give the insurer an opportunity to investigate the causes and nature of the disability upon which the claim for compensation is based, and when claim is made for death the object of the notice is to enable the insurer to make prompt inquiry to determine
No significance on this phase of the case can be attached to the circumstance that the insurer furnished to the insured, after the accident but before it knew of the death, its usual form for filing proofs of loss. The only proof of loss which then so far as the insurer knew could be made was for disability, and proof of loss was required for recovery under the disability clause whether the insured recovered or died. A form for proof of loss for death could not be made out until after the death came to pass. The policy expressly provides that the furnishing of forms for filing proof of loss shall not operate as a waiver of any of the rights of the defendant in defence of any claim arising under the policy. The words of § 4 cannot rightly be construed to mean that where notice has been given of disability arising from accident, no further notice need be given if death results from the same accident.. The words “accidental death” in that clause refer to any death occurring from any cause for which recovery may be had under the policy. The plaintiff’s right to maintain this action is therefore dependent upon the notice sent by her on July 27.
For the purpose of this decision, we assume that this notice was sufficient in form to be a compliance with the requirements of the policy. Its terms are not imperative that notice be given before burial, but the fact that the insurer was to have the right and opportunity to make an autopsy is to be considered with the other circumstances in deciding whether immediate notice was given.
The phrase in § 4, “In event of accidental death immediate notice thereof must be given to the Association,” is to be read with the provision of § 5 that “Failure to give notice
The plaintiff, the widow of the insured, lived in Chelsea in this Commonwealth and helped to make out the disability notice of July 19. Therefore she knew of the policy and was at hand at all crucial times. The fact of death was patent. It required no time for investigation. It came to the instant attention of the plaintiff. “If there is no dispute in regard to the facts, what is due diligence is a question of law for the court .... The question whether there was due diligence has been submitted to a jury in cases where the evidence was doubtful or conflicting, and where, upon the view of it most favorable to the plaintiff, the court would find due diligence.” Knowlton, J., in Parker v. Middlesex Mutual Assurance Co. 179 Mass. 528, 531, 532.
In Smith v. Scottish Union & National Ins. Co. 200 Mass. 50,53, the court in an opinion by Sheldon, J., said, in referring
In the case at bar the plaintiff delayed five days after the death and until the third day after the funeral in mailing a simple, untechnical notice to a known insurer. This, as matter of law, was not immediate notice in the circumstances here disclosed, and the defendant was entitled to its requests for instructions numbered 12 and 13, to the effect that notice required by the policy was not given, and to a directed verdict. McCarthy v. Rendle, 230 Mass. 35. Boston Elevated Railway v. Maryland Casualty Co. 232 Mass. 246, 250, 251. Woolverton v. Fidelity & Casualty Co. of New York, 190 N. Y. 41, 47, 48. In re Coleman’s Depositories, Ltd. & Life & Health Assurance Association, [1907] 2 K. B. 798, 808.
On this point the writer has not been able to bring his mind to think that upon the facts the question, whether the plaintiff acted with due diligence in giving the notice, required as matter of law a negative answer.
The conclusion here reached makes it unnecessary to consider other exceptions argued.
Exceptions sustained.
. Judgment for defendant.
