Hatch v. U.S. Casualty Co.

• Decision Date: 01 January 1908
• Citation: 83 N.E. 398,197 Mass. 101
• Parties: HATCH v. UNITED STATES CASUALTY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 101

83 N.E. 398

HATCH v. UNITED STATES CASUALTY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 1, 1908

COUNSEL

Andrew

J. Bailey and D. Roy Smith, for appellant.

Matthews Thompson & Spring, for appellee.

OPINION

HAMMOND J.

This is an action brought by a beneficiary upon two insurance policies. The declaration contains two counts, one on each policy; and the question upon each count is whether upon the allegations therein contained it appears that the notice required by the policy was seasonably given to the defendant. So far as material to this question the language is the same in each of the policies and the allegations are the same in each count; and therefore in discussion we shall speak only of the first count.

The allegations of this count as to notice are as follows 'Item 4. The insured on July 7, 1906, met with an exclusively external and violent accident, namely, fell, but did not consider the accident of any account; from about August 7, 1906, he was confined to his bed, and on August 11 1906, within ninety days after the fall, died, and immediately upon the death the plaintiff was informed and before that time had no knowledge or information that the death was affected exclusively by the fall; the death was not from and cause excepted in the policy. The plaintiff thereupon within four days after the death gave notice thereof to the defendant at its Home Office with the fullest information obtainable at the time and this was the only notice given up to that time to the company by the insured or the beneficiary; all other things to be done or observed as provided in the policy were so done or observed.'

The policy is a long document. It recites that the defendant company, in consideration of a certain premium and of the warranties and agreements in the application 'which are made a part hereof,' insures Cyrus J. Hatch 'against loss as hereinafter provided, caused by bodily injury effected exclusively by external, violent and accidental means, provided written notice of the injury, whether fatal of non-fatal, together with the fullest information obtainable at the time be given by the insured or the beneficiary to the home office of the company within within ten days of the event causing such injury, to wit: (a) Loss of life occurring within ninety days of the event causing the injury five thousand dollars; (b) loss of both eyes, meaning total and permanent blindness for life occurring within ninety days of the event causing the injury, the amount stipulated for loss of life.' And thus the policy proceeds to enumerate several other kinds of loss insured against, such as that of an arm, hand or foot, stipulating in each case that the loss shall occur within 'ninety days from the event causing the injury.' It also enumerates as among the things insured against (k) 'total loss of time, meaning that period immediately following the event causing the injury during which the insured is thereby rendered, independent of any and all other causes, wholly and continuously unable to transact each and every part of the duties pertaining to his occupation,' twenty-five dollars a week, 'not to exceed 104 consecutive weeks;' also (1) 'partial loss of time,' and '(m) total disability for life,' occurring in each case 'independently of any and all other causes' and 'immediately following the event causing the injury.' Then follows the statement that 'if any injury, whether fatal or non-fatal, is caused or contributed to, primarily or secondarily, wholly or partly, directly or indirectly, by' any one of the many things or under certain conditions there enumerated in great detall, the liability of the company for any of the losses shall be only one-half of the amount previously stipulated. These various causes or conditions of injury are not here set out, but upon reading them in detail it plainly appears that the word 'injury' therein spoken of means injury to the person of the insured and nothing else. The same remark may be made of the word 'injury' as used in the seventh paragraph of the policy. There are many other provisions in the policy, but as they have no bearing on the question before us they are not here set out.

What is the fair construction of this policy as to when the notice must be given? The defendant contends that the event causing the injury is the accident, and hence that the notice must be given within ten days of the accident. The plaintiff contends that there can be no event 'causing the injury' until there is an injury, and that the death of the insured being the injury a notice given within ten days of the death is sufficient, and hence there is no forfeiture.

It is to be premised that the giving of this notice is not a condition subsequent, as it has been sometimes called. It is not simply a part of the rule of procedure for the enforcement of the liability of the defendant, as are the provisions of the fifth paragraph in this same policy providing for proofs of loss. The promise to insure is not absolute but conditional. The condition is that the notice, whatever it may be and by whomsoever or whenever given shall be given. It is a condition precedent to the creation of liability or the life of the promise; or, to put it perhaps in a better way, the giving of the notice is one of the essentials of the cause of action.

It is further to be observed that we are not dealing with a case where it was impossible to give a notice, as where death is contemporaneous with the accident and the fact of death is not known nor can be known until more than ten days after the accident. In the case before us the insured lived more than a month after the accident, apparently in his usual health, for 'he did not consider the accident of any account.'

The insurance is 'against loss * * * caused by bodily injury effected exclusively by external, violent and accidental means.' It is perfectly plain that the injury here spoken of is injury to the person of the insured, and this construction is borne out by the subsequent provisions of the...