Ober v. Nat'l Casulty Co.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtDOLAN
Citation60 N.E.2d 90,318 Mass. 27
Decision Date05 March 1945
PartiesOBER v. NATIONAL CASULTY CO.

318 Mass. 27
60 N.E.2d 90

OBER
v.
NATIONAL CASULTY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1945.


Exceptions from Superior Court, Suffolk County; Morton, Judge.

Action of contract by Mary F. Ober, administratrix of the estate of Douglass J. Ober, deceased, against National Casualty Company on an insurance policy. A verdict was directed for defendant, and plaintiff brings exceptions.

Exceptions overruled.

[60 N.E.2d 90]

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and SPALDING, JJ.

D. A. Lynch, of Boston, for plaintiff.


H. Loewenberg, of Boston, for defendant.

DOLAN, Justice.

This is an action of contract upon an insurance policy issued by the defendant to recover for the death of the plaintiff's intestate, Douglass J. Ober. At the conclusion of the plaintiff's opening the defendant moved for a directed verdict. Thereupon the policy of insurance was admitted in evidence, and the judge directed the jury to return a verdict for the defendant. The plaintiff duly excepted to that action.

The terms of the policy, so far as here material, for the payment of $2,000 in case of loss of life by ‘the burning of any church, theatre, library, school or municipal administration building in which the insured shall be at the beginning of such fire, and is burned by such fire or suffocated by the smoke therefrom.’ In her opening the plaintiff offered to prove that the intestate died as a result of ‘Flame burns. Accident. Burned in Conflagration,’

[60 N.E.2d 91]

while a patron of Cocoanut Grove1 on November 28, 1942. The sole issue for determination is whether Cocoanut Grove was a theatre within the meaning of the policy of insurance, and whether that question should have been submitted to the jury. Statements of expected proof in the plaintiff's opening were in substance as follows: Cocoanut Grove operated under three licenses issued by the Boston licensing board, (1) a victualler's license authorizing the sale of food, (2) a license permitting it to serve liquor, and (3) a license referred to by the board as an entertainment license. The application for the entertainment license described the stage and the character of entertainment as ‘All types of entertainment, dancing, singing, music.’ Under the titles ‘Where to dine’ and ‘Night Spots' Cocoanut Grove advertised ‘practically daily’ in Boston newspapers ‘* * * and his orchestra. Two floor shows nightly, 7-45 and 11.30. Price of dinner $1.50.’ The basis of the show was ‘a line of girls' who appeared on the stage four or five times in different costumes and went through various routines. A band leader acted as master of ceremonies. A tenor sang nightly at all the shows. At various times certain actors and actresses and parts of theatrical casts appeared in the shows. On November 26, 1942, two days before the fire, Cocoanut Grove advertised ‘Cocoanut Grove guest stars and an all star floor show.’ In her opening the plaintiff described the physical arrangement of Cocoanut...

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49 practice notes
  • A.W. Chesterton v. Mass. Insurers Insolv.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 12, 2005
    ...at the first exposure and continuing until diagnosis or death, or until a claim is made) that follows. Cf. Ober v. National Cas. Co., 318 Mass. 27, 30, 60 N.E.2d 90 Page 1252 In Matter of the Liquidation of Midland Ins. Co., 164 Misc.2d 363, 623 N.Y.S.2d 689 (N.Y.Sup.Ct.1994), a judge in th......
  • Boston Helicopter Charter v. Agusta Aviation, Civ. A. No. 89-2605-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 20, 1991
    ...respecting the circumstances of the parties and the condition of the subject with which they are dealing." Ober v. National Casualty Co., 318 Mass. 27, 30, 60 N.E.2d 90 (1945). Thus, a contract cannot be interpreted as a matter of law by the court where there exists a dispute regarding mate......
  • Jefferson Ins. Co. of New York v. National Union Fire Ins. Co. of Pittsburgh, Pa., No. 95-P-1618
    • United States
    • Appeals Court of Massachusetts
    • January 27, 1997
    ...in an insurance contract are all questions of law for the court, subject to plenary review on appeal. See Ober v. National Cas. Co., 318 Mass. 27, 30, 60 N.E.2d 90 (1945); Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234 (1982); Camp Dresser & McKee, Inc. v. Home I......
  • Comm'r of Corps. & Taxation v. Chilton Club
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 15, 1945
    ...business of furnishing food, and other refreshments and * * * it was a restaurant, a so called night club.’ Ober v. National Casualty Co., 318 Mass. 27, 60 N.E.2d 90, 92. Such places were clubs only in name. They were open to all those who cared to enter. Plainly they were similar to the pl......
  • Request a trial to view additional results
49 cases
  • A.W. Chesterton v. Mass. Insurers Insolv.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 12, 2005
    ...at the first exposure and continuing until diagnosis or death, or until a claim is made) that follows. Cf. Ober v. National Cas. Co., 318 Mass. 27, 30, 60 N.E.2d 90 Page 1252 In Matter of the Liquidation of Midland Ins. Co., 164 Misc.2d 363, 623 N.Y.S.2d 689 (N.Y.Sup.Ct.1994), a judge in th......
  • Boston Helicopter Charter v. Agusta Aviation, Civ. A. No. 89-2605-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 20, 1991
    ...respecting the circumstances of the parties and the condition of the subject with which they are dealing." Ober v. National Casualty Co., 318 Mass. 27, 30, 60 N.E.2d 90 (1945). Thus, a contract cannot be interpreted as a matter of law by the court where there exists a dispute regarding mate......
  • Jefferson Ins. Co. of New York v. National Union Fire Ins. Co. of Pittsburgh, Pa., No. 95-P-1618
    • United States
    • Appeals Court of Massachusetts
    • January 27, 1997
    ...in an insurance contract are all questions of law for the court, subject to plenary review on appeal. See Ober v. National Cas. Co., 318 Mass. 27, 30, 60 N.E.2d 90 (1945); Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234 (1982); Camp Dresser & McKee, Inc. v. Home I......
  • Comm'r of Corps. & Taxation v. Chilton Club
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 15, 1945
    ...business of furnishing food, and other refreshments and * * * it was a restaurant, a so called night club.’ Ober v. National Casualty Co., 318 Mass. 27, 60 N.E.2d 90, 92. Such places were clubs only in name. They were open to all those who cared to enter. Plainly they were similar to the pl......
  • Request a trial to view additional results

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