Earle C. Dodds, Inc. v. Boston Cas. Co.
| Decision Date | 13 January 1941 |
| Citation | 31 N.E.2d 7,308 Mass. 124 |
| Parties | EARLE C. DODDS INC. v. BOSTON CASUALTY COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 23, 1940.
Present: FIELD, C.
J., LUMMUS, QUA COX, & RONAN, JJ.
Insurance, Issuance of policy, Assignment of policy, Oral insurance.
An action upon a written policy of casualty insurance issued to one who died after the stated date of the policy could not be maintained where the policy provided that it was not to be binding until countersigned and it was not drawn until after the death.
An action could not be maintained by an alleged assignee of an oral contract to insure in advance of and in expectation of the issuance of a policy of insurance where the assignment by the insured had reference only to the policy.
CONTRACT. Writ in the Superior Court dated March 10, 1937. The case was tried before T. J. Hammond, J., and there was a verdict for the plaintiff in the sum of $2,480. The defendant alleged exceptions.
W. J. Bannan, for the defendant.
W.
A. Murray, for the plaintiff.
The defendant, by a policy of the sort described in Alecks's Case, 301 Mass. 403 , dated March 15, 1935, purported to insure for one month one Guerino Lucarelli, an employee of the plaintiff, in the principal sum of $2,000 "against bodily injuries caused solely and directly by accidental means." The term of the policy could be extended month by month with the consent of the insurer by payment of further monthly premiums. In case of loss, the insurer was to make specified payments according to the severity of the injuries and the period of disability. For death as a result of such injuries the whole principal sum was payable. By assignment dated March 8, 1935, Lucarelli purported to assign his rights in the "within Policy" to the plaintiff with the consent of the insurer.
During the year 1935, Amos A. Fontaine was an agent of the defendant "for the transaction, within his apparent authority as its acknowledged agent, of all business which it is authorized to do in this Commonwealth." George W. McMann became such an agent on March 20, 1935. But an officer of the defendant described them in his testimony as subagents for a general agent of the defendant in Boston.
Early in February 1935, the plaintiff consulted Fontaine about insurance saying that it could not obtain workmen's compensation insurance at a reasonable rate because of the prevalence of "occupational diseases" in its quarrying business. See Sullivan's Case, 265 Mass. 497 . On March 7, 1935, Fontaine and his associate McMann told the plaintiff that they could furnish a policy for $2,000 with $18 a week for disability, or a policy of $3,000 with $15 a week for disability. The plaintiff said that it preferred the latter, because that would give it greater protection against death claims. The plaintiff paid Fontaine the monthly premiums for policies of the sort it preferred for a number of workmen, including Lucarelli. Applications for policies of the defendant, to be signed by the workmen, and also assignments of the policies by the workmen to the plaintiff, to be signed by the workmen, were made out. These were taken the next day to Connecticut, where the workmen were, were signed by the workmen, including Lucarelli, and were mailed to Fontaine at his office in Whitman.
About March 14, 1935, to take the date most favorable to the plaintiff, Fontaine and McMann told the plaintiff that they could not obtain the form of policy that it desired, because the defendant would not issue a policy larger than $2,000 with a payment for disability as low as $15 a week. The plaintiff said it would accept a policy of $2,000 with $15 a week for disability. That policy cost less than the other was expected to cost. Fontaine and McMann said they would go back to the defendant and report, that the plaintiff would get the policy in a few days, and that the plaintiff would be covered from March 7, the day it paid the premiums. About March 24, 1935, Fontaine and McMann delivered the premiums, the applications and the assignments to the defendant. As signed by the several workmen, including Lucarelli, the applications asked for policies with a principal sum of $3,000, but someone in the office of the defendant changed the amount to $2,000. The policies were dated back to March 15, 1935, and with the assignments were sent to the plaintiff "a few days after March 22, 1935," and evidently not earlier than March 24, 1935.
In the meantime, on March 20, 1935, Lucarelli was killed by accident while working...
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