Wainer v. Weiner
| Decision Date | 26 October 1934 |
| Citation | 192 N.E. 497,288 Mass. 250 |
| Parties | WAINER v. WEINER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Bristol County; Hanify, Judge.
Suit in equity by David Wainer against Morris Weiner and others, heard by a judge of the superior court. From a final decree dismissing the bill, the plaintiff appeals.
Affirmed.
W. B. Perry, Jr., of New Bedford, for plaintiff.
J. F. Cavanagh, of Boston, for defendant.
This is a suit in equity under G. L. (Ter. Ed.) c. 175, § 113, to compel the application to a judgment recovered by the plaintiff against the defendants Weiner and Baker, in an action for bodily injuries, of a policy of insurance issued to them by the defendant General Accident Fire and Life Assurance Corporation, Ltd., against loss arising from such injuries. The policy contained this clause: ‘The assured upon the occurrence of an accident however trivial it may appear and irrespective of whether any personal injury or property damage is apparent, at the time of the accident, shall give immediate written notice thereof with the fullest information obtainable at the time to the Corporation's Head Office at Philadelphia, Pa., or to its duly authorized agent.’ The pivotal question is whether there was compliance with this clause.
The trial judge found these to be the facts: The policy was issued by the insurer and was in full force and effect on June 15, 1923. On the morning of that day the plaintiff was injured in Boston by being thrown from a wagon of the defendants Weiner and Baker where he was inspecting apples, by reason of some movement of the horses attached to the wagon. He was taken in an ambulance to the Boston City Relief Station where it was found that he had suffered a fractured patella. Less than an hour later, against advice, he was taken by automobile to a hospital in New Bedford, where he lived. The defendant Weiner was standing by at the time of the accident, saw the plaintiff on the wagon and later saw him lying on the street, and was informed by others that the plaintiff had been injured although he did not see the fall. Weiner did not report the accident to the insurer because he did not think it serious enough after getting report from the relief station that the plaintiff went home. The defendant Baker was told in the early afternoon of June 15, 1923, that the plaintiff was injured by being thrown from the wagon; he was acquainted with the plaintiff and knew that he lived in New Bedford. No written notice of the accident was given by Weiner and Baker to the insurer until August...
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