Thompson v. United Cas. Co.

• Decision Date: 24 February 1937
• Citation: 296 Mass. 507,6 N.E.2d 769
• Parties: THOMPSON v. UNITED CASUALTY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 507

6 N.E.2d 769

THOMPSON

v.UNITED CASUALTY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 24, 1937.

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

Action of contract by Ida Thompson against the United Casualty Company. Verdict was directed for the defendant, and the plaintiff brings exceptions.

Exceptions overruled.A. Cohen and P. Thompson, both of Boston, for plaintiff.

E. B. Goldberg, of Boston, for defendant.

QUA, Justice.

The plaintiff brings this action as beneficiary under a policy insuring her husband, Benjamin S. Thompson, now deceased, against ‘loss from death or disability * * * resulting directly and solely from bodily injury, independently of all other causes, sustained through accidental means.’ She contends that his death was brought about by food poisoning from his having eaten unwholesome or contaminated food and that this was within the terms of the policy.

One of the ‘Standard Provisions' of the policy reads as follows: ‘4. Written notice of injury or of sickness on which claim may be based must be given to the Company within twenty days after the date of the accident causing such injury or within ten days after the commencement of disability from such sickness. In event of accidental death immediate notice thereof must be given to the Company.’ See G.L(Ter.Ed) c. 175, § 108. Among ‘Miscellaneous Provisions' is this: ‘Failure to comply with all the terms and conditions of this policy shall bar all right to recover on any claim made hereunder.'

The plaintiff must fail unless she has sustained the burden of proving that notice was given as required by paragraph ‘4’ of the ‘Standard Provisions' or that such notice was waived. Wilcox v. Massachusetts Protective Association, Inc., 266 Mass. 230, 234, 165 N.E. 429;Sheehan v. Commercial Travelers' Mutual Accident Association of America, 283 Mass. 543, 549, 186 N.E. 627, 88 A.L.R. 975. We assume, but without intending to intimate any opinion upon the point, that the ‘immediate notice’ required in the event of accidental death may be merely oral, and that any form of words which convey the necessary information will suffice. But notice of death alone is not enough. The policy is not a life insurance policy. It insures against death resulting from accident, and the notice which is expressly required is notice of ‘accidental death.’ At least the notice must be such as under the existing circumstances will by fair construction inform the company that the insured has met death through accident.

As tending to show oral notice of...