Rooney v. Maryland Casualty Co.

• Decision Date: 19 June 1903
• Citation: 184 Mass. 26,67 N.E. 882
• Parties: ROONEY v. MARYLAND CASUALTY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 26

67 N.E. 882

ROONEY v. MARYLAND CASUALTY CO.

Supreme Judicial Court of Massachusetts, Norfolk.

June 19, 1903

COUNSEL

J. E. Cotter S. H. Tyng, and E. S. Fellows, for plaintiff.

Dickson & Knowles and T. E. Grover, for defendant.

OPINION

BARKER J.

1. One stipulation of the policy is that 'the assured upon the occurrence of an accident shall give immediate notice thereof in writing with full particulars to the home office of the company at Baltimore, Md., or to its authorized agents. He shall give like notice with full particulars of any claim which may be made on account of such accident.' The accident on account of which the suit is brought happened on November 5th, and the plaintiff knew of it on November 6th but the first written notice of it which he sent to any person was his letter of November 28th. The only act which he did tending to give notice before that date was to go to the office of Houston, the person from whom he had received the policy, and to whom he had paid the premium, and to tell him that there had been an accident upon the work, and to notify a physician. We think that there was no evidence admitted or offered which, in view of this state of facts, would have justified a finding that the plaintiff had complied with the stipulation that upon the occurrence of an accident he should give immediate notice thereof in writing. His omission to give any written notice whatever for more than three weeks after he had information of the accident distinguishes the case from that of Mandell v. Fidelity & Casualty Co., 170 Mass. 173, 49 N.E. 110, 64 Am. St. Rep. 291 where the assured gave notice four days after receiving information of the accident, and eighteen days after it had occurred.

The other question for consideration is that of waiver of the requirement for immediate notice, and with reference to this question the plaintiff's exceptions to the exclusion of evidence, though not argued, are insisted upon.

The letter of December 1, 1899, from the defendant's Boston attorneys at law to their client, was properly excluded as a privileged communication between attorney and client. Those of December 4, 1899, and of October 22, 1901, were properly excluded for the same reason. The letter of May 2, 1900, we assume to have been from the Boston attorneys at law of the defendant to the attorney of the plaintiff, and had no tendency to show that the writers were acting in...