Moore v. Wildey Casualty Co., 176 Mass. 418 (Mass. 1900)

Morton, J.

This case comes here upon the defendant’s exceptions to the refusal of the court to give two rulings that were asked for. The first was that upon the evidence proper written notice of the accident was not given within the time limited by the certificate and that the defendant had not waived such notice, and the plaintiff could not, therefore, recover. The court refused to give this ruling, and ruled that proper written notice had not been given, but that there was evidence for the jury on the question whether the defendant had waived the requirement as to notice, • — ■ meaning, of course, the requirement as to the time within "which notice should be given. We think that this was correct. The accident occurred on March 31,1898. There was evidence tending to show that a brief notice of the accident, dated March 31, was sent by the plaintiff’s husband to the defendant company, but was not received till April 11. There was

also evidence tending to show that another notice, dated April 9, and giving full particulars of the accident, was sent by the plaintiff’s husband to the company, but that this likewise was not received till April 11. No objection was then made by the company that these notices were not within the time required by the certificate. That fact would not of itself, perhaps, constitute sufficient evidence of waiver. But on April 23 the defendant’s secretary sent to the plaintiff ah accident blank, saying that she could fill it out and forward it to that office at her earliest convenience, if she so desired. A blank containing full particulars of the accident and signed by the plaintiff’s husband, and dated April 26, was received by the defendant, and has been retained by it without objection, so far as appears. Presumably this was the blank referred to in the letter of the defendant’s secretary of April 23. After the death of the plaintiff’s husband, on June 10,1898, a certificate was filled out by her and sent to the defendant company. The receipt of this was acknowledged by the defendant through its secretary by letter dated July 8, in which he writes : “We have received the proper form of certificate filled out by Mrs. Moore in the case of the late Dr. Win. M. Moore and will say that Mr. Kelley a brother-in-law of the widow, has been in to see in regard to the latter, desiring us to keep him posted.” No objection appears to have been made at this time that notice of the accident had not been received within the ten days required by the certificate. The first objection made by the defendant was on October 10,1898, in reply to a letter- from the plaintiff’s counsel, and the objection then was the general one, that the estate of the plaintiff’s husband had no claim against the company. When the objection that notice of the accident had not been received within the time required was first made, does not appear. It is said in the brief of counsel for the plaintiff that it was not made till after suit was brought, which, as appears from a copy of the writ, was October 12, 1898. We think that the conduct of the defendant was such as to warrant the jury in finding that there was a waiver of the requirement in regard to the time within which notice should be given, and that the refusal to rule as the defendant requested was right. See Searle v. Dwelling House Ins. Co. 152 Mass. 263; Clark v. New England Ins. Co. 6 Cush. 342; Peabody v. Fraternal Accident Association, 89 Maine, 96.

The other ruling requested relates to the construction to be given to the words “ such injuries alone ” in the clause in which the “ company agree to pay Susan J. Moore, wife, if living, ..." the sum of $5,000, if the death of the certificate holder shall result from such injuries alone within ninety days from the date of said accident.” We think that it is plain that they refer to the kind of injury which furnishes the basis of indemnity, namely, bodily injury effected during the life of the certificate “ through external, violent, and accidental means.” That is the sense in which . like words are used in the clause relating to partial disability, and that is the kind of injury which is the basis of indemnity in cases of total disability. We see no reason for holding that a different kind of injury was meant in cases of death. The certificate defines the kind of injury which shall constitute the basis of indemnity, and then provides for cases of partial disability, total disability and death as the result of such injuries. No .doubt the company could have provided that the injury which should entitle a party to indemnity in case of death should be such as resulted in total or partial disability for a longer or shorter time, as well as death within a certain time, but we do not think that it has done so in the certificate before us. We think that the ruling requested was rightly refused.