Wainer v. Weiner

• Decision Date: 25 October 1934
• Citation: 288 Mass. 250
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: DAVID WAINER v. MORRIS WEINER & others.

288 Mass. 250

DAVID WAINER v. MORRIS WEINER & others.

Supreme Judicial Court of Massachusetts, Bristol.

October 25, 1934

October 22, 1934.

Present: RUGG, C.

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

Insurance Liability.

A plaintiff, who had recovered judgment for bodily injuries, caused by negligent operation of a horse and wagon, against one insured against such liability, sought to compel the insurer to satisfy the judgment by a suit in equity under G. L. (Ter Ed.) c. 175, Section 113; c. 214,

Section 3 (10). It appeared that the policy contained a provision requiring the insured, "upon the occurrence of an accident however trivial it may appear and irrespective of whether any personal injury or property damage is apparent," to give the insurer "immediate" notice, but that the insured, although he learned of the accident to the plaintiff on the day when it occurred, did not give notice to the insurer for over two months. The bill was dismissed. Held that the dismissal was proper: the liability of the insurer to the plaintiff was dependent upon its liability to the insured.

BILL IN EQUITY, begun by a writ of summons and attachment dated August 30, 1932, and filed in the Superior Court on October 3, 1932.

The suit was heard by Hanify, J. The judgment against the defendants Weiner and Baker was for damages sustained by the plaintiff by reason of negligent operation of a horse and wagon by the defendants. Material facts found by him are stated in the opinion. A final decree was entered dismissing the bill. The plaintiff appealed.

W. B. Perry, Jr., for the plaintiff. J. F. Cavanagh, for the defendant General Accident Fire and Life Assurance Corporation, Limited.

RUGG, C.J. This is a suit in equity under G. L. (Ter. Ed.) c. 175, Section 113; c. 214, Section 3 (10), 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,...