McCarthy v. Rendle

• Decision Date: 09 April 1918
• Citation: 230 Mass. 35,119 N.E. 188
• Parties: McCARTHY v. RENDLE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 35

119 N.E. 188

McCARTHY

v.RENDLE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 9, 1918.

Report from Superior Court, Suffolk County; Jabez Fox, Judge.

Suit by Francis E. McCarthy against James B. Rendle, Clayton Stoddard, and the Travelers' Insurance Company, resulting in finding for plaintiff. On report to the Supreme Judicial Court. Decree dismissing the bill as to the Insurance Company directed.

Whipple, Sears & Ogden, Wm. R. Sears, and Lothrop Withington, all of Boston, for plaintiff.

Walter I. Badger and Louis C. Doyle, both of Boston, for defendant Travelers' Ins. Co.

PIERCE, J.

This is a bill in equity under St. 1914, c. 464, to recover against the Travelers' Insurance Company a judgment debt which the plaintiff had previously obtained against the defendants Rendle and Stoddard in an action at law.

It was argued at the trial that the Travelers' Insurance Company had on January 6, 1915, in full force and effect a policy of liability insurance insuring Rendle & Stoddard, a co-partnership, from loss or damage caused by injuries to the public for which they might be liable, and that this policy covered the liability of Rendle and Stoddard for the accident to the plaintiff. The policy contained the following provision:

‘This agreement is subject to the following conditions: D-The assured upon the occurrence of an accident shall give immediate written notice thereof to the company, or to its duly authorized agent, with the fullest information obtainable. He shall give like notice with full particulars of any claim made on account of such accident. * * *’

The presiding judge found as a fact that there was no waiver, and at the request of the Travelers' Insurance Company reported the case to this court to determine whether ‘upon my findings of facts, my ruling that the requirements of the policy respecting notice have been complied with, is correct.’

The reported facts are as follows: January 6, 1915, the plaintiff's leg was scalded by a jet of steam or boiling water coming from an engine operated by one of Rendle & Stoddard's workmen. The plaintiff was an inspector working for the Metropolitan Park Commission, and Rendle & Stoddard were contractors who were construction a bridge for the commission. ‘Immediately upon receiving the injury McCarthy walked away from the job unaided, had his leg bandaged at the office of the commission, and went home. The next day he returned to work and remained upon the job until January 14th, when his leg becoming worse, he went home, and remained at home until after January 26th. Between January 14th and January 26th he called in attorneys, and they, on January 26th, mailed a letter to Rendle & Stoddard containing a full statement of the accident and the claim, and on January 28th Rendle & Stoddard sent to the insurance company a letter inclosing the letter of the attorneys, which was received by the company January 29th. No claim is made that this notice when received was not a sufficiently full notice of the nature of the accident and of the claim. But this was the first notice of the accident received by the company and upon its receipt the company objected that it came too late. McCarthy did not notify Rendle & Stoddard that he was injured, nor make any claim for his injury before the letter of his attorneys was sent to them. They learned of the occurrence from their foreman (who, it is agreed, was not present at the time, but learned of it during the same day), within a week after January 6th. They assumed, however, and had a right to assume, from the fact that McCarthy was back upon his job and made no complaint, that his injury was trifling.’

The question presented is whether the fact, found by the judge, that ‘they [Rendle & Stoddard] assumed, * * * and had a right to assume, from the fact that McCarthy was back upon his job and made no complaint that his injury was trifling,’ was a sufficient justification as a matter of law for their...