Constantino v. Massachusetts Accident Co.

• Decision Date: 23 June 1915
• Citation: 221 Mass. 464,109 N.E. 447
• Parties: CONSTANTINO v. MASSACHUSETTS ACCIDENT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

221 Mass. 464

109 N.E. 447

CONSTANTINO v. MASSACHUSETTS ACCIDENT CO.

Supreme Judicial Court of Massachusetts, Berkshire

June 23, 1915

Exceptions from Superior Court, Berkshire County; Jabez Fox, Judge.

Action by John Constantino against the Massachusetts Accident Company. Verdict for the plaintiff, and defendant excepts. Exceptions overruled.

COUNSEL

Burns Cummings & Rosenthal, of Pittsfield (William A. Burns, John B. Cummings, and James M. Rosenthal, all of Pittsfield, of counsel), for plaintiff.

R. J Morrissey and J. L. Gray, both of Westfield, for defendant.

OPINION

PIERCE, J.

This is an action of contract brought by the plaintiff to recover certain indemnity upon an insurance policy issued to the plaintiff by the defendant.

At the close of all the evidence the defendant asked the judge to rule:

'(1) Upon all the evidence in this case, the plaintiff is not entitled to recover;' and '(2) If the plaintiff is entitled to recover, he cannot recover more than $37.50 for 10 months.'

These requests were refused and exceptions duly taken.

The charge was full and accurate in its statements of law applicable to the issues, and no exception to it is argued specifically. The jury found for the plaintiff, and the only question presented for our consideration is whether the evidence, when taken in the aspect most favorable to the contention of the plaintiff, warranted the finding and the amount of the verdict.

The jury could have found that in the month of February, 1913, the defendant issued its policy to the plaintiff providing for a monthly accident indemnity of $52.50, and a sickness indemnity of the same amount payable for a period not longer than 24 consecutive months.

The occupation of the assured was set forth as a dyer, dresser and extractor.

When insured the plaintiff was employed by the Hinsdale Woolen Company in Hinsdale, Mass. On March 15, 1913, he entered the employ of the General Electric Company at Pittsfield, Mass., as a truck man; and on that day, when making payment of the first monthly premium to Mr. Burke the agent of the defendant to deliver the policy and to receive the premiums, gave notice of his change of employment. He was asked to make application to change the policy, but he refused and no new policy ever issued. He paid the April, May, June and July premiums to Burke as they severally became due. In July, 1913, he became sick, the agent Burke came to see him, made out a written notice for him, and sent it to the company. In August, 1913, the company sent to Burke for the plaintiff a check for $37, which the plaintiff claimed was insufficient in that he was entitled to receive a full month's indemnity of $52.

Burke communicated with the defendant, and on September 4, 1913, received a check for the balance claimed by the plaintiff less the premium of $2.50 due and payable August 15, 1913. This retention of the premium operated to continue the policy in full force until September 15, 1913. On September 13, 1913, the plaintiff's right hand was crushed as the result of a heavy tank falling upon it, while he was employed at the plant of the General Electric Company at Pittsfield, and the disability of the plaintiff resulting therefrom extended for 10 months.

The defendant in support of its request to direct a verdict, contends, on the testimony of its witness, William J. Burke, that in the company's classification the employment of the plaintiff at Pittsfield was a more hazardous occupation than that at Hinsdale, and that as a consequence the policy was avoided, or if not, that a new rating followed and resulted in a change of the indemnity obligation of $52.50 to $37.50. It had a manual showing a classification of risks, which it might have produced to the jury; failing so to do it has no just cause to complain that the presiding judge's comment on such failure was unfair and prejudicial.

The policy nowhere provides that a change to a more hazardous employment shall make the policy void, but on the contrary expressly contemplates that such a change is likely, and limits its obligation to such an indemnity as the premium paid would

purchase in the more hazardous occupation. The burden of establishing the...