McCord v. Masonic Casualty Co.

• Decision Date: 29 March 1909
• Citation: 201 Mass. 473,88 N.E. 6
• Parties: McCORD v. MASONIC CASUALTY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 473

88 N.E. 6

McCORD v. MASONIC CASUALTY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 29, 1909

The following memorandum was filed in the superior court:

'In this case I find for the plaintiff in the sum of $154.37 being $140, with interest from date of writ. At the trial defendant offered no defense, except that upon undisputed facts notice of the accident was not given within the time limited by the policy, requested me so to rule, and I refused. Furthermore, I found as a fact that the defendant waived the aforesaid requirements as to the time of giving notice, and I refused a ruling requested by the defendant that the evidence did not warrant such a finding.

'The five paragraphs of 'facts admitted to be true, if and so far as they are material,' were received and considered by me as competent evidence.

'To the foregoing rulings and refusals to rule the defendant saved exceptions, but by agreement of the parties the case is to be reported.

'If on the foregoing facts the plaintiff is entitled to recover, judgment for him in sum of $140, with interest from date of writ, is to be entered; otherwise, judgment for the defendant.'

COUNSEL

W. E. Dorman and G. Newhall, for plaintiff.

Whipple, Sears & Ogden and J. M. Hoy, for defendant.

OPINION

LORING J.

The purpose of the clause requiring notice to be given to the company at its home office in Boston, within two weeks of the commencement of the disability, is manifest. It was to enable the company at the proper time to make the necessary investigations to determine the merits of the claim, and if in its judgment it was not a meritorious one, to prepare for its defense. Having this purpose in mind there can be no doubt of the true construction of the clause. The clause means that notice shall be received by the company at Boston within the two weeks. Notice to a person, particularly notice to a person at a specified place, is not given until it reaches the person named at the place specified.

This certificate, in requiring notice to be given, stands on all fours with the employer's liability act (Rev. Laws, c. 106, § 75) and the highway act (Rev. Laws, c. 51, § 20). It has been assumed, and in our opinion rightly assumed, that notices under those statutes must be received within the time there limited to make out a compliance with those acts. Shea v. New York, New Haven & Hartford Railroad, 173 Mass. 177, 53 N.E. 396; McCarthy v. Dedham, 188 Mass. 204, 74 N.E. 319. See, also, in this connection, Cheswell v. Fraternal Accident Association, 199 Mass. 267, 85 N.E. 96; United States Mutual Accident Association v. Mueller, 151 Ill. 254, 37 N.E. 882; Crown Point Iron Co. v. AEtna Ins. Co., 127 N.Y. 608, 28 N.E. 653, 14 L. R. A. 147. The wording of the policy before the court in Manufacturers' & Merchants' Ins. Co. v. Zeitinger, 168 Ill. 286, 48 N.E. 179, 61 Am. St. Rep. 105, relied on by the plaintiff, is not the same as that of the clause here in question. If the wording of that policy ought to be taken to be tantamount to the wording in this certificate, we are of opinion that the decision is not in accord with the weight of reason or authority and should not be followed.

In our opinion there was no evidence warranting a finding that the defendant had waived its right to have notice given it within two weeks.

It is to be noted that this is not a case where the plaintiff has been induced to forego doing something which he might have done had he not been lulled into a false belief that nothing more was necessary. It is not like the case of a defect of form in a notice where the time for giving notice has not expired. See Cook v. North British Ins. Co., 181 Mass. 101, 103, 104, 62 N.E. 1049. In the case at bar (as in Cook v. North British Ins. Co.) the objection to the notice was that it was not given within the prescribed time--was that defect could not be cured by further action on the part of the plaintiff. But even in that class of cases there may be action on the part of the company which amounts to a waiver. See for example Moore v. Wildey Casualty Co., 176 Mass. 418, 57 N.E....