Wilcox v. Massachusetts Protective Association, Inc.

• Decision Date: 25 February 1929
• Citation: 266 Mass. 230
• Parties: ETHEL WILCOX v. THE MASSACHUSETTS PROTECTIVE ASSOCIATION, INCORPORATED.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 230

ETHEL WILCOX v. THE MASSACHUSETTS PROTECTIVE ASSOCIATION, INCORPORATED.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1929

January 16, 17 1928, January 2, 1929.

Present: RUGG, C.

J., CROSBY, PIERCE CARROLL, WAIT, & SANDERSON, JJ.

Insurance Accident: notice to insurer. Words, "Immediate notice," "As soon as reasonably possible." Contract, Construction. Notice.

A policy of accident insurance issued by a Massachusetts corporation called an "Association," contained the following among its "Standard

Provisions": "Written notice of injury or of sickness on which claim may be based must be given to the Association 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 Association. . . .

Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible." The insured suffered an accident on July 14 and was taken to a hospital. On July 19, he signed a notice of disability, which the beneficiary helped to prepare and which was received by the corporation on July 21. In the early morning of July 22, he died in

Chelsea, where a funeral was held on July 23. He was buried in Washington in the District of Columbia on July 24. On Sunday, July 27, the beneficiary mailed in Philadelphia, Pennsylvania, addressed to the corporation at the home office, a correspondence card stating merely that the insured had died on July 22. At the trial of an action by the beneficiary upon the policy, the foregoing facts were not in dispute. A motion that a verdict be ordered for the defendant was denied. Held, that

(1) The requirements of the quoted provisions of the policy as to notices of injury, sickness and death were separate and distinct: where death followed disability, it was a condition precedent to recovery upon the policy that "immediate notice" of the death after it occurred be given to the company "as soon as . . . reasonably possible";

(2) The facts presented the question, whether there had been due diligence in sending the notice with reasonable promptness in the circumstances;

(3) The facts not being in dispute, that question was to be determined by the court and not by the jury;

(4) In the circumstances, the delay by the plaintiff for five days after the death and until the third day after the funeral in mailing a simple, untechnical notice to the defendant as a matter of law was not a compliance with the requirements of the policy of an "immediate notice," or of a notice to be given "as soon as was reasonably possible";

SANDERSON, J., dissenting. (5) Judgment was ordered for the defendant.

The general rule that reasonable doubts arising from the language of a policy of insurance should be resolved against the insurer is not applicable to terms which the insurer is required by legislative act to incorporate; and such rule loses much of its force when the insurer has adopted the language of the statute in clauses not required, but expressly permitted, by the statute.

CONTRACT upon a policy of accident insurance issued by the defendant, a Massachusetts corporation. Writ dated May 11, 1925.

In the Superior Court, the action was tried before Macleod, J. Material evidence is stated in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor. The motion was denied. There was a verdict for the plaintiff in the sum of $5,736.50. The defendant alleged exceptions.

This case was argued at the sitting of the court in January, 1928, by S. C. Rand, (S. H. Babcock with him,) for the defendant, and J. E. Young, (J. W. Hathaway with him,) for the plaintiff, before Rugg, C.J., Braley, Pierce, Carroll, & Sanderson, JJ., and afterwards was submitted on briefs to all the Justices. It was afterwards reargued on briefs by F. H. Nash & S. C. Rand, for the defendant, and J. W. Hathaway & Arthur P. French, for the plaintiff, before Rugg, C.J., Crosby, Pierce, Carroll, Wait, & Sanderson, JJ.

SANDERSON, J. This is an action of contract, brought by the plaintiff as beneficiary named in an insurance policy issued by the defendant company to her husband, Harry L. Wilcox, on January 9, 1924, insuring against loss resulting "from (1) bodily injuries effected directly and independently of all other causes by accidental means (excluding self-destruction or any attempt thereat, while sane or insane); and (2) disability from disease." By the terms of the policy the beneficiary was entitled to receive $5,000, the principal sum under it if the injuries received by the insured resulted in death, within ninety days of the accident. Section four of the "Standard Provisions" reads: "Written notice of injury or of sickness on which claim may be based must be given to the Association 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 Association." Section five reads: "Such notice given by or in behalf of the insured or beneficiary, as the case may be, to the Association at its Home Office, Worcester, Massachusetts, or to any authorized agent of the Association, with particulars sufficient to identify the insured, shall be deemed to be notice to the Association. Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible." Section six reads: "The Association upon receipt of such notice, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not so furnished within fifteen days after the receipt of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, character and extent of the loss for which claim is made." Section eight reads: "The Association shall have the right and opportunity to examine the person of the insured when and so often as it may reasonably require during the pendency of claim hereunder, and also the right and opportunity to make an autopsy in case of death where it is not forbidden by law." At the conclusion of the testimony and before final argument the defendant moved in writing that the court order the jury to bring in a verdict for the defendant. The motion was denied and the defendant excepted. The jury found for the plaintiff.

On this branch of the bill of exceptions the jury were warranted in finding the following facts: On July 14, 1924, the insured, Harry L. Wilcox, was a machinist or engineer on a seagoing tug in the Charlestown Navy Yard. About noon on that day, accompanied by his daughter, he went to and sat down in the Scollay Square Olympia Theatre for about an hour. He then started to go out from the theatre, walked up the aisle, turned to see if his daughter was following him, caught his heel in the carpet and fell backward, striking the back of his head with a "dull thud." He was taken to a relief hospital and finally to the Chelsea Naval Hospital, where he remained until his death on July 22, 1924. On July 19, 1924, just before an operation, he wrote his name on a notice of disability claim which was addressed to the defendant and afterward received by it on July 21, 1924. The blank spaces in the body of the notice were filled in by the plaintiff and by one of the attending physicians at the hospital, and the defendant was thereby informed of a claim by the insured for disability resulting from a fall and from an ulcer. On July 24, 1924, the defendant sent the insured a "preliminary form of disability" claim. The blanks of this form were filled in by the plaintiff and the executed instrument was mailed by her to the defendant from Newport, Rhode Island, on July 27, or shortly thereafter, and was received by the defendant August 2, 1924. The insured died at 3:30 A.M. on July 22, 1924. After his death a physician at the hospital performed an autopsy. Funeral services were held in Chelsea, on July 23, 1924, and at six o'clock in the evening the body was taken by train to Washington, D.C. On Thursday, July 24, 1924, in the afternoon, services were held in the Arlington Cemetery, where the remains were buried. About six o'clock on Thursday evening, the plaintiff went to Philadelphia, and stayed there with her sister-in-law, resting, for two days.

Her husband's father there suggested that a notice to the insurance company was required. She testified that she knew all insurance companies had to be notified. On...