Ober v. Nat'l Casulty Co.

• Decision Date: 05 March 1945
• Citation: 60 N.E.2d 90,318 Mass. 27
• Parties: OBER v. NATIONAL CASULTY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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.

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,’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 Grove, reading the description thereof set forth in Commonwealth v. Welansky, 316 Mass. 383, 387-389, 55 N.E.2d 902, from which it appears that the main dining room with an area of three thousand seven hundred sixty-five square feet contained a dancing space of six hundred sixty square feet and a stage behind with an area of four hundred thirty-six square feet.

The action of the judge in directing the jury to return a verdict for the defendant was right. In our opinion there is nothing ambiguous or uncertain about the meaning of the word theatre as used in the contract, and no question with respect to its meaning was presented for the jury. It is settled with respect to contracts in writing that it is only where more than one view can be taken of the evidence respecting the circumstances of the parties and the condition of the subject with which they are dealing that a proper case arises for the jury, and that where, as here, there is no dispute as to the facts to be applied to the terms of the contract the interpretation of the contract in their light still is to be treated as a question of law for the judge. Atwood v. Boston, 310 Mass. 70, 75, 37 N.E.2d 131, and cases cited. Whittaker v. Brookline, Mass., 60 N.E.2d 85. In the construction of contracts in writing words that are plain and free from ambiguity must be construed in their usual and ordinary sense. Morse v. Boston, 260 Mass. 255, 262, 157 N.E. 523;Levin v....