Tighe v. Maryland Cas. Co.
| Decision Date | 09 September 1914 |
| Citation | 106 N.E. 135,218 Mass. 463 |
| Parties | TIGHE et al. v. MARYLAND CASUALTY CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Daniel H. Coakley and John G. Walsh, both of Boston, for plaintiffs.
Edward I. Taylor, of Boston, and J. W. Britton, of Hartford, Conn for defendant.
By the terms of the policy the plaintiffs as the assured were bound under condition C to give immediately written notice of the accident, either to the home office of the company or to its authorized agent, 'with the fullest information available at the time.' Rooney v. Maryland Casualty Co., 184 Mass. 26, 67 N.E. 882. It was urgently insisted at the trial, that the plaintiffs had failed to comply with this requirement. But whether seasonable notice, with all available particulars, had been given was a question of fact on the evidence, which was properly submitted to the jury. Greenough v. Phoenix Ins. Co., 206 Mass. 247, 249 92 N.E. 447, 138 Am. St. Rep. 383. The verdict having disposed of that ground of defense, the defendant relies on the failure of the plaintiffs to comply with the terms of condition F in bar of their right of recovery. Lamson Consolidated Store Service Co. v. Prudential Fire Ins Co., 171 Mass. 433, 435, 50 N.E. 943. This clause provides, that:
But under condition D it was obliged at its own cost to defend the action in the name and behalf of the plaintiffs unless the company elected to settle, or to pay the assured the full amount of the indemnity stipulated. This condition was inserted for its own benefit. It does not contend that as required by condition D the notice received from counsel for the person injured, and the summons served upon them in the action of tort which followed, were not promptly transmitted by the plaintiffs to its duly authorized attorney, who entered an appearance and filed an answer. The plaintiffs having complied with all precedent conditions, and the defendant not having exercised the option of paying the indemnity, leaving them to make such defense or settlement as they might be advised, it absolutely controlled the suit, and the situation. It either could defend or compromise as it might determine. Nesson v. United States Casualty Co., 201 Mass. 71, 73, 87 N.E. 191, 131 Am. St. Rep. 390. It is true the defendant's 'attorney in charge' states in a letter to the plaintiffs, that the entry of an appearance and filing of an answer were for the purpose of avoiding a default, with a reservation of all the company's rights under the policy, and 'that if it shall appear that we have been prejudiced by your failure to duly notify us of the accident, we desire to retain the right to withdraw our defense of said action.' It is likewise true that subsequently the 'writ' with a copy of the declaration and answer were returned to the plaintiffs with a statement by the defendant's counsel, that having been prejudiced by the failure of the plaintiffs to give notice the company declined to defend the case, or to 'assume your liability.' But the jury has settled this assumption adversely to the defendant, and the condition in question is to be read and applied accordingly. Young v. Hayes, 212 Mass. 525, 533, 99 N.E. 327. The record recites, that after the defendant's counsel had withdrawn, the plaintiffs, who did not contest the question of liability, were defaulted, and damages having been assessed by a jury they have satisfied the execution which issued on the judgment. The defendant's first contention, that the judgment was not rendered by a court of last resort, cannot be sustained. The superior...
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