Rooney v. Ludlow Mfg. & Sales Social & Athletic Club

• Decision Date: 30 June 1953
• Citation: 330 Mass. 340,113 N.E.2d 838
• Parties: ROONEY v. LUDLOW MFG. & SALES SOCIAL & ATHLETIC CLUB, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 838

113 N.E.2d 838

330 Mass. 340

ROONEY v. LUDLOW MFG. & SALES SOCIAL & ATHLETIC CLUB, Inc.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 26, 1953.

Decided June 30, 1953.

Henry A. Moran, Jr., Springfield, for plaintiff.

Ralph S. Spooner and Arthur E. Quimby, Springfield, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and COUNIHAN, JJ.

SPALDING, Justice.

On February 1, 1949, the plaintiff, a business invitee of the defendant, was injured when he slipped and fell by reason of an accumulation of snow and ice on a stairway on the defendant's premises. The plaintiff had a verdict which was recorded under leave reserved. Thereafter the judge entered a verdict for the defendant, subject to the plaintiff's exception. The bill of exceptions states that the sole question for decision is whether the plaintiff 'gave notice to the defendant as required by G.L. (Ter.Ed.) c. 84, § 18, and in the manner set forth in § 21.'

The facts relating to this issue are these. At the time of the accident 'the defendant had in force a general liability insurance policy (owners', landlords', and tenants' form) with the Liberty Mutual Insurance Company,' hereinafter called Liberty. This policy, which is before us, appears to be broad enough to cover liability of the sort here involved and no contention is made to the contrary. On February 9, 1949 (nine days after the accident), one Silva, an investigator of Liberty, called on the plaintiff and obtained from him a written statement setting forth the details of the accident. The statement was signed by the plaintiff. 'There was no evidence that the defendant had any knowledge that Silva was going to contact the plaintiff or take a written statement from him.' It is agreed that 'no writing, other than * * * [this statement], was made by the plaintiff within thirty days after the accident.' There was no evidence that the statement was ever given by Liberty to the defendant. Pertinent provisions of the defendant's insurance policy are the following: 'As respects such insurance as is afforded by the other terms of this policy the company shall (a) defend in his name and behalf any suit against the insured alleging such injury, sickness, diseade or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the company. * * * If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.'

We are not called upon to decide whether the statement sufficiently set forth the time, place and cause of the injury in accordance with G.L. (Ter.Ed.) c. 84, §§ 18-21, as amended. The parties agree that the question for decision is whether the plaintiff by giving the statement to Liberty's investigator gave the notice required by the statute.

To recover the plaintiff was required to prove that he gave to the defendant a written notice of the time, place, and cause of the injury within thirty days after the injury. G.L.(Ter.Ed.) c. 84, §§ 18-21, as amended. DePrizio v. F. W. Woolworth Co., 291 Mass. 143, 196 N.E. 910; Regan v. Atlantic Refining Co., 304 Mass. 353, 23 N.E.2d 869. The giving of the statement to Liberty's investigator did not constitute such notice. The defendant was the person primarily liable, and the fact that it had a contract of insurance with Liberty did not alter the situation. If the judgment obtained by the plaintiff exceeded, as it might, the amount covered by the policy, the defendant would have to pay it. And there might be circumstances in which the defendant might have to pay the entire judgment. For example, the policy contains the usual coperation clause, and if the defendant failed to fulfill its obligations under that clause...