Taxeira v. Arter

• Decision Date: 26 November 1935
• Citation: 292 Mass. 537,198 N.E. 900
• Parties: TAXEIRA v. ARTER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

292 Mass. 537

198 N.E. 900

TAXEIRA v. ARTER et al.

Supreme Judicial Court of Massachusetts, Norfolk.

November 26, 1935

Suit in equity by Joseph Taxeira against Mary Arter administratrix of the estate of Robert Arter, and the American Employers' Insurance Company. From the finding and ruling of the trial court, its order for final decree and from the final decree, the defendant insurance company appeals.

Appeal from the finding and ruling of the court and from the order for a final decree dismissed. Final decree affirmed.

Appeal from Superior Court, Norfolk County; Brogna, Judge.

R. H Lee and S. P. Sears, both of Boston, for appellant American Employers Ins. Co.

W. G Cogan, of Brockton, for appellee.

QUA Justice.

The plaintiff has recovered judgment against the defendant Mary Arter as administratrix of the estate of Robert Arter for personal injuries sustained while the plaintiff was riding in an automobile driven by said Robert Arter. He brings this bill under G.L. (Ter.Ed.) c. 214, § 3, cl. 10, to reach and apply in satisfaction of his judgment the obligation of the defendant American Employers' Insurance Company under a motor vehicle liability policy insuring said Robert Arter. The sole question at issue is whether the defendant insurance company, hereinafter called the company, had cancelled the policy before the accident.

G. L. c. 175, § 113A, as amended by St. 1926, c. 368, § 4, requires the inclusion in such policies of a provision that ‘ no cancellation of the policy * * * shall be valid unless written notice is given by the party proposing cancellation to the other party at least fifteen days prior to the intended effective date thereof.’ But the policy here in question also contained a further provision that ‘ Notice of cancellation sent by registered mail to, or delivered at, the address of the named assured as given in the Declarations shall be a sufficient notice.’ The accident occurred on December 7, 1928, between five and six p.m. On November 22, 1928, the company mailed at Boston by registered mail addressed to the assured at ‘ Goward's Corner, Baston, Mass.,’ which was the address set out in the policy, a notice that the insurer ‘ was cancelling’ the policy as of 12:01 a. m. December 7, 1928. Easton is about twenty-five miles from Boston. The notice was received at the Easton post office on November 23, 1928. It was never delivered to or received by Robert Arter and was mailed back by the post office to the company five days later. The trial judge ruled that notice of cancellation was not given at least fifteen days prior to the intended effective date thereof and entered a final decree in favor of the plaintiff.

The company contends that by the terms of the policy the parties had agreed that the mere mailing of a notice by registered mail to the address stated in the policy should be sufficient, without regard to whether the assured ever received it or to whether it was deposited in the post office in such season that he could have received it fifteen days prior to the cancellation date. It is then argued that as the act of mailing was performed on the fifteenth day before the cancellation date, notice was given in time under the rule laid down in Stewart v. Griswold, 134 Mass. 391.

This argument overlooks the peculiar character of our compulsory liability insurance law...