McCarthy v. Rendle

This is a bill in equity under St. 1914, c. 464, to recover against the Travelers Insurance Company a judgment debt which the plaintiff previously had obtained against the defendants Rendle and Stoddard in an action at law.

■ It was agreed at the trial that the Travelers Insurance Company had on January 6, 1915, in full force and effect a policy of liability insurance insuring Rendle and Stoddard, a co-partnership, from loss or damage caused by injuries to the public for which they might be liable, and that this policy covered the liability of Rendle and Stoddard for the accident to the plaintiff. The policy contained the following provision: "This agreement is subject to the following conditions:. . . D—The assured upon the occurrence of an accident shall give immediate written notice thereof to the Company, or to its duly authorized Agent, with the fullest information obtainable. He shall give like notice with full particulars of any claim made on account of such accident. . . .” The presiding judge found as a fact that there was no waiver, and at the request of the Travelers Insurance Company reported the case to this court to determine whether "upon my findings of facts, my ruling that the requirements of the policy respecting notice have been complied with, is correct.”

*37The reported facts are as follows: On January 6,1915, the plaintiff’s leg was scalded by a jet of steam or boiling water coming from an engine operated by one of Rendle and Stoddard’s workmen. The plaintiff was an inspector working for the metropolitan park commission, and Rendle and Stoddard were contractors who were constructing a bridge for the commission. “Immediately upon receiving the injury McCarthy walked away from the job unaided, had his leg bandaged at the office of the commission, and went home. The next day he returned to work and remained upon the job until January 14, when, his leg becoming worse, he went home and remained at home until after January 26. Between January 14 and January 26 he called in attorneys, and they, on January 26, mailed a letter to Rendle and Stoddard containing a full statement of the accident and the claim, and on January 28 Rendle and Stoddard sent to the insurance company a letter enclosing the letter of the attorneys, which was received by the company January 29. No claim is made that this notice when received was not a sufficiently full notice of the nature of the accident and of the claim. But this was the first notice of the accident received by the company and upon its receipt the company objected that it came too late. McCarthy did not notify Rendle and Stoddard that he was injured, nor make any claim for his injury before the letter of his attorneys was sent to them. They learned of the occurrence from their foreman (who, it is agreed, was not present at the time, but learned of it during the same, day), within a week after January 6. They assumed, however, and had a right to assume, from the fact that McCarthy was back upon his job and made no complaint, that his injury was trifling.”

The question presented is whether the fact, found by the judge, that “they [Rendle and Stoddard] assumed, . . . and had a right to assume, from the fact that McCarthy was back upon his job and made no complaint that his injury was trifling,” was a sufficient justification as a matter of law for their failure to give notice of “the occurrence of an accident” for a period of at least fifteen days after “they learned of the occurrence from their foreman.”

Within the week after January 6, 1915, and between January 14 and 28, 1915, when they gave notice of the accident to the *38insurance company, Rendle and Stoddard knew of the “occurrence of the accident,” that is, they knew that the plaintiff on January 6, 1915, had had his leg “scalded by a jet of steam or boiling water” coming from an engine operated by one of their workmen. In passing, it must be said that in the reported facts there is not the slightest support for the suggestion of the plaintiff that the phrase “the occurrence” used by the judge in “they learned of the occurrence from their foreman,” was intended by him to summarize or characterize a series of events having their origin as a practical joke upon the plaintiff as the victim. Differing from policies that provide for “immediate notice” “upon the occurrence of an accident, and upon notice of any claim on account of an accident,” Anoka Lumber Co. v. Fidelity & Casualty Co. of New York, 63 Minn. 286, which hold that the assured need not give notice until a claim is presented, but see Underwood Veneer Co. v. London Guarantee & Accident Co. Ltd. 100 Wis. 378; 11 Ann. Cas. 258, note, and cases collected, the policy in suit provides for immediate notice of “the occurrence of an accident” regardless of any claim for damages or of the amount of damage] sustained or claimed. The policy then provides that the insured “shall give like notice with full particulars of any claim made on account of such accident.” The reason for the first of the conditions is plain. The occurrence of an accident and injury, however slight, may result in litigation, even in protracted litigation. It is, the experience of every defender of causes that it is a matter of first importance to become possessed of all material facts and of the names and residences of all known witnesses at the earliest possible moment, as facts may be forgotten or distorted and witnesses may go beyond reach. It is an important provision in that it is “for the protection of the insurer against fraudulent claims, and also against those which, although made in good faith, are not valid.” Hatch v. United States Casualty Co. 197 Mass. 101, 105, 106.

If we assume that the first knowledge of the “occurrence of an accident” which the insured had was on January 13, 1915, the last day of the week following the accident, the condition of the policy required that they should then “give immediate written notice thereof to the Company.” Notice was not given until January 28, 1915. It is not contended that the failure to comply *39with the requirements of the policy was due to ignorance of the occurrence of the accident, as was the case in Mandell v. Fidelity & Casualty Co. 170 Mass. 173, or that from the nature of the accident it was reasonably impossible during the period to determine whether there was or would be any bodily injury, as was the case in H. P. Hood & Sons v. Maryland Casualty Co. 206 Mass. 223, 226. For the application of a like rule under the workmen’s compensation act see Johnson’s Case, 217 Mass. 388; Carroll’s Case, 225 Mass. 203. It is plain that the fact, that the insured has a reasonable and bona fide doubt as to the existence of any injury or of any liability, cannot be used to deprive the insurer of his'contractual right to have an immediate notice of the occurrence of an accident, regardless of the damages that may be claimed to flow from that accident.

We are of opinion that the ruling was wrong as a matter of law, and in accordance'with the terms of the report a decree must be entered dismissing the bill with costs as to the defendant insurance company.

Decree accordingly.