Thompson v. United Cas. Co.

• Decision Date: 23 February 1937
• Citation: 6 N.E.2d 769,296 Mass. 507
• Parties: IDA THOMPSON v. UNITED CASUALTY COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 507

6 N.E.2d 769

IDA THOMPSON v. UNITED CASUALTY COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 23, 1937

November 13, 1936.

Present: RUGG, C.

J., PIERCE, FIELD DONAHUE, & QUA, JJ.

Insurance Accident, Notice. Notice.

There could be no recovery under a policy of accident insurance requiring that in the "event of accidental death . . . notice thereof must be given to the" insurer, where the claim was for death caused by poisoning resulting from the eating of unwholesome or contaminated food and the only notice given was that the insured "died on account of indigestion."

CONTRACT. Writ in the Superior Court dated May 3, 1934. The action was tried before Sheehan, J., who ordered a verdict for the defendant. The plaintiff alleged exceptions.

A. Cohen, (P.

Thompson with him,) for the plaintiff.

E. B. Goldberg, for the defendant.

QUA, J. 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, Section 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. Sheehan v. Commercial Travelers Mutual Accident Association, 283 Mass. 543 549. 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...