Merchants Mut. Casualty Co. v. Justices of Superior Court

• Decision Date: 25 June 1935
• Parties: MERCHANTS MUT. CASUALTY CO. v. JUSTICES OF SUPERIOR COURT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

291 Mass. 164

197 N.E. 166

MERCHANTS MUT. CASUALTY CO. v. JUSTICES OF SUPERIOR COURT.

Supreme Judicial Court of Massachusetts, Suffolk.

June 25, 1935

Exceptions from Supreme Judicial Court, Suffolk County.

Petition for writ of certiorari by the Merchants Mutual Casualty Company to the Justices of the Superior Court. On exceptions saved by the petitioner to an order entered by the single justice dismissing the petition.

Exceptions overruled.

W. G. Clark, of Gloucester, for petitioner.

C. F Lovejoy, Asst. Atty. Gen., for respondents.

RUGG Chief Justice.

This is a petition for a writ of certiorari. It comes before us on exceptions by the petitioner to the order entered by the single justice that the petition be ‘ dismissed but not as matter of discretion.’ No question is raised as to form or procedure. The design of the petition is to quash proceedings in the Superior Court on an appeal from an order of the board of appeal on motor vehicle liability policies. It is provided by G. L. (Ter. Ed.) c. 175, § 113D, that the Superior Court on appeal from such an order shall have jurisdiction in equity upon a summary hearing ‘ to review all questions of fact and law, and to affirm or reverse such finding or order and may make any appropriate decree,’ and that the decision of that court shall be final. The appeal was dismissied in the Superior Court. This court has jurisdiction in certiorari concerning such a decision. Swan v. Justices of Superior Court, 222 Mass. 542, 544, 545, 111 N.E. 386.

The facts as found by the judge of the Superior Court are these The petitioner issued a policy of motor vehicle insurance in approved form to Emma Rockel for the year 1933. In her application for insurance and in the declaration in the policy issued, her address was stated to be ‘ 112 East Street, Clinton.’ In fact her address was ‘ 112 Beech Street, Clinton.’ The policy provided that notice of cancellation sent by registered mail to, or delivered at, the address of the assured as given in the declaration shall be a sufficient notice. On February 17, 1933, the petitioner as insurer issued and forwarded by registered mail addressed to the assured at 112 East Street a written notice of cancellation of the policy to become effective on March 9, 1933. That letter was delivered on February 18, 1933, in the ordinary course of mail to the true address of the assured at 112 Beech Street. On February 18, 1933, the assured was temporarily absent from her home. No notice was given by her of any change of mailing address; no facilities for the delivery of mail were available at the place of her temporary residence and no prearranged plan had been formulated by the assured or her daughter, who also resided at 112 Beech Street, for the delivery of any mail, but it was customary for her to call once or twice a week and receive any mail which had been delivered to 112 Beech Street. The letter was delivered at the real address of the assured on the same day on which it would have been delivered if there had been no mistake in her address. She was in no way prejudiced by the sending of the notice to the mistaken address. The date of the filing of a written complaint by the assured with the commissioner of insurance was March 3, 1933; that was within ten days after receiving written notice purporting to cancel her policy. Since the general finding by the trial judge imports a finding of all subsidiary facts essential to that conclusion, it must be presumed that no one was authorized to receive the letter in the absence of the assured. The facts found by the trial judge...