Boston Elevated Ry. Co. v. Maryland Cas. Co.

• Decision Date: 27 February 1919
• Parties: BOSTON ELEVATED RY. CO. v. MARYLAND CASUALTY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 246

122 N.E. 196

BOSTON ELEVATED RY. CO.

v.MARYLAND CASUALTY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 27, 1919.

Exceptions from Superior Court, Suffolk County; Patrick J. Keating, Judge.

Action by the Boston Elevated Railway Company against the Maryland Casualty Company. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Pinanski & Morris and George E. Morris, all of Boston, for plaintiff.

Edward I. Taylor, of Boston, for defendant.

CARROLL, J.

The defendant insured the plaintiff against loss from liability imposed by law upon the plaintiff ‘for damages on account of bodily injuries' suffered by any person ‘not employed by the assured, while at or about the work of the assured and during the prosecution of such work.’ One Georgia Reed was injured on February 8, 1912, and recovered a verdict against the plaintiff. In this action the plaintiff seeks to recover the amount of an execution it was compelled to pay her, together with the amount expended by the plaintiff in the preparation and defense of the action. It was conceded that there was evidence from which the jury might infer ‘that the operation out of which the injuries to Georgia Reed,’ hereinafter called the passenger, resulted, ‘was an operation covered by the terms of the policy.’ The material questions raised by this bill of exceptions are:

First. Was there any evidence for the jury that the plaintiff gave to the defendant immediate written notice of the accident, according to the terms of the policy?

Second. Was there any evidence for the jury that the defendant company waived the provisions of the policy requiring immediate notice of the accident?

The policy provided that immediate written notice of any accident must be forwarded to the home office of the company or its authorized representative. Written notice of the accident was not given to the defendant by the plaintiff until November 12, 1912, the plaintiff's contention being that while its employés were at work where the passenger was injured and at once reported the occurrence to the plaintiff, the facts reported did not being the passenger's case within the terms of the policy and it did not know until November 8, 1912, that she claimed her injuries resulted from the negligence of the plaintiff's workmen who were making repairs at the Sullivan Square terminal where she was injured.

Assuming that the plaintiff acted with due diligence in investigating the claim of the passenger and that at the time of the accident it had no means of knowing she was injured by the negligence or its employés, or that she would make this claim, and acting on the reports received, the plaintiff was justified in supposing she was injured by falling against a permanent part of the elevated structure and the accident was not within the terms of the policy. There was evidence, however, from one of its investigators that he knew the passenger claimed to have been injured by the negligence of the plaintiff's workmen several months before the written notice was given. This investigator called on the passenger either in February or March, 1912, and the claim was then made by her that it ‘was a piece of carelessness to have two men working on pipes and leave them in such a condition as people would fall over them,’ and she informed the investigator at this interview that she fell over these pipes. His report came to the attention of the claims attorney. When this report was made, although contrary to the facts previously reported by the plaintiff's witnesses, the plaintiff knew that the passenger was claiming to have been injured in such a way as to impose liability upon the insurance company, under the terms of the policy.

The contract between the parties was clear and explicit. It required immediate written notice of any accident and the giving of this notice was a condition precedent to recovery. When the investigator made his report the plaintiff knew that the passenger was claiming she was injured by the negligence of the plaintiff's workmen, it was then its duty at once to give the written notice, in order to protect its rights against the defendant. Hatch v. U. S. Casualty Co., 197 Mass. 101, 103, 83 N. E. 398,14 L. R. A. (N. S.) 503, 125 Am. St. Rep. 332,14 Ann. Cas. 290;National Construction Co. v. Travelers' Insurance Co., 176 Mass. 121, 122, 57 N. E. 350;McCarthy v. Rendle, 230 Mass. 35, 39, 119 N. E. 188.

In addition to this the passenger alleged in her declaration which was filed in court in April, 1912, that while proceeding through Sullivan Square terminal she ‘tripped and fell over a large box which had become detached from the wall and was lying in the middle of the floor.’ The plaintiff also knew from the report of one of its workmen who was present when the passenger was injured, that he was at the time moving a wooden box on the platform, which had been taken from an iron column. In its interrogatories to the passenger, filed in September, 1912, it asked for...