Tighe v. Maryland Casualty Co. , 218 Mass. 463 ( 1914 )

Braley, J.

By the terms of the policy the plaintiffs as the assured were bound under Condition C to give immediately written notice of the accident, either, to the home office of the company or to its authorized agent, "with the fullest information available at the time.” Rooney v. Maryland Casualty Co. 184 Mass. 26. It was urgently insisted at the trial, that the plaintiffs had failed to comply with this requirement. But, whether seasonable notice with all available particulars had been given, was a question of fact on the evidence, which properly was submitted to the jury. Greenough v. Phœnix Ins. Co. 206 Mass. 247, 249.

The verdict having disposed of that ground of defense, the defendant relies on the failure of the plaintiffs to comply with the terms of Condition F in bar of their right of recovery. Lamson Consolidated Store Service Co. v. Prudential Fire Ins. Co. 171 Mass. 433, 435. This clause provides, that “No action shall lie against the Company to recover for any loss under this Policy unless it shall be brought by the Assured for loss actually sustained and paid in money by the Assured in satisfaction of a judgment after trial of the issue; nor unless such action is brought within ninety (90) days after such judgment, by a court of last resort, against the Assured has been so paid and satisfied. The Company does not prejudice by this condition any defenses to such action it may be entitled to make under this Policy.” But under Condition D it was obliged at its own cost to defend the action in the name and behalf of the plaintiffs, unless the company elected to settle, or to pay the assured the full amount of the indemnity stipulated. This condition was inserted for its own benefit. It does not contend that, as required by Condition D, the notice received from counsel for the person injured, and the summons served upon them in the action of tort which followed, were not promptly transmitted by the plaintiffs to its duly authorized attorney, who entered an appearance and filed an answer. The plaintiffs having complied with all precedent conditions, and the defendant not having exercised the option of paying the indemnity, leaving them to make such defense or settlement as they might be advised, it absolutely controlled the suit, and the situation. It either could defend or compromise as it might determine. Nesson v. United States Casualty Co. 201 Mass. 71, 73. It is true the defendant’s “attorney in charge” states in a letter to the plaintiffs, that the entry of an appearance and filing of an answer were for the purpose of avoiding a default, with a reservation of all the company’s rights under the policy, and “that if it shall appear that we have been prejudiced by your failure to duly notify us of the accident we desire to retain the right to withdraw our defense of said action.” It is likewise true that subsequently the “writ” with a copy of the declaration and answer were returned to the plaintiffs with a statement by the defendant’s counsel, that, having been prejudiced by the failure of the plaintiffs to give notice, the company declined to defend the case, or to “assume your liability.” But the jury has settled this assumption adversely to the defendant, and the condition in question is to be read and applied accordingly. Young v. Hayes, 212 Mass. 525, 533. The record recites, that, after the defendant’s counsel had withdrawn, the plaintiffs, who did not contest the question of liability, were defaulted, and that, damages having been assessed by a jury, they have satisfied the execution which issued on the judgment.

The defendant’s first contention, that the judgment was not rendered by a court of last resort, cannot be sustained. The Superior Court had original and exclusive jurisdiction of the action. R. L. c. 157, § 3. It had full authority to order and to enter judgment for damages, assessed either upon default or after trial of the issues. R. L. c. 173, § 109; c. 177, §§ 1, 4. Dalton-Ingersoll Co. v. Fiske, 175 Mass. 15. Bailey v. Edmundson, 168 Mass. 297. And the limitation, that if the assured satisfies the judgment he must sue on the policy within ninety days “after such judgment by a court of last resort” has been so paid, necessarily refers to the judgment terminating the litigation entered by a court having jurisdiction of the cause and the parties. The second contention is, that the loss was not sustained and paid in satisfaction of a judgment obtained after a trial of the issue of the plaintiffs’ liability. The defendant’s withdrawal, however, was conditional. It rested upon the plaintiffs’ failure to give the notice. But, as the notice had been duly given and received, it had assumed the defense. The plaintiffs, therefore, who were not in default, had the right to treat what the company had done as an election to undertake the defense in accordance with its express promise found in Condition D. O’Connell v. New York, New Haven, & Hartford Railroad, 187 Mass. 272, 278. If it had performed that which it engaged and undertook to perform, the plaintiffs would have received the full benefit and protection of the indemnity bargained for, and for which they paid the “ estimated premium.” It cannot repudiate the contract in part and rely upon it in part, or insist upon a condition precedent the non-performance of which has been caused by itself. Brown v. Henry, 172 Mass. 559, 567, 568. Young v. Hunter, 6 N. Y. 203, 207.

The defendant’s primary position in avoidance of liability was taken deliberately under the advice of counsel, and it should not be permitted to set up its own mistaken and unjustifiable conduct as having worked a forfeiture of the policy. Lowe v. Harwood, 139 Mass. 133. Beharrell v. Quimby, 162 Mass. 571, 574, 575. Whitten v. New England Live Stock Ins. Co. 165 Mass. 343. Barrie v. Quinby, 206 Mass. 259, 268. Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 234.

It follows from the views expressed, which have the sanction of a majority of the court, that the presiding judge rightly denied the first request for a ruling that the plaintiffs could not recover; and the exceptions to the refusal to rule that the plaintiffs were not entitled to interest, but were limited to the amount specified in Condition A for loss from an accident resulting in bodily injuries to one person, not having been argued, are to be treated as waived.

Exceptions overruled.