Moore v. Wildey Cas. Co.

• Decision Date: 21 June 1900
• Citation: 57 N.E. 673,176 Mass. 418
• Parties: MOORE v. WILDEY CASUALTY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 418

57 N.E. 673

MOORE v. WILDEY CASUALTY CO.

Supreme Judicial Court of Massachusetts, Barnstable.

June 21, 1900

COUNSEL

H. P. Harriman and H. E. Perkins, for plaintiff.

Frank M. Forbush and Raymond A. Hopkins, for defendant.

OPINION

MORTON J.

This case comes here upon exceptions to the refusal of the court to give two rulings that were asked for. The first was that upon the evidence proper written notice of the accident was not given within the time limited by the certificate, and that the defendant had not waived such notice, and the plaintiff could not, therefore, recover. The court refused to give this ruling, and ruled that proper written notice had not been given, but that there was evidence for the jury on the question whether the defendant had waived the requirement as to notice,--meaning, of course, the requirement as to the time within which notice should be given. We think that this was correct. The accident occurred March 31, 1898. There was evidence tending to show that a brief notice of the accident dated March 31st, was sent by plaintiff's husband to the defendant company, but was not received till April 11th. There was also evidence tending to show that another notice, dated April 9th, and giving full particulars of the accident, was sent by plaintiff's husband to the company, but that this likewise was not received till April 11th. No objection was then made by the company that these notices did not comply with the provision in the certificate in regard to time. That fact would not of itself, perhaps, constitute sufficient evidence of waiver. But on April 23d, the defendant's secretary sent to the plaintiff an accident blank, saying that she could fill it out, and forward to that office, at her earliest convenience, if she so desired. A blank containing full particulars of the accident, and signed by the plaintiff's husband, and dated April 26th, was received by the defendant, and has been retained by it without objection, so far as appears. Presumably this was the blank referred to in the letter of defendant's secretary of April 23d. After the death of plaintiff's husband, a certificate was filled out by her, and sent to the defendant company. The receipt of this was acknowledged by the defendant, through its secretary, by letter dated July 8th in which he writes: 'We have received the proper form of certificate filled out by Mrs. Moore in the case of Dr. Wm M. Moore, and will say that Mr. Kelley, a brother-in-law of the widow, has been in to see us in regard to the latter, desiring us to keep him posted.' No objection appears to have been made at this time that notice of the accident had not been received within the 10 days required by the certificate. The first objection made by the defendant was on October 10, 1898...