Lamontagne v. Standard Life & Accident Insurance , 226 Mass. 161 ( 1917 )

Braley, J.

The defendant is not liable unless “immediate written notice” of the claim on account of the accident had been given to the company at its home office “or its duly authorized agent.” It is conceded that he sent no notice to the home office.

The jury however could find that within three or four days after the accident a notice proper in form as a “team owners’ report” was prepared at the plaintiff’s request by one Audet, with whom, after being duly signed, the jury further could find it was left and accepted as a notice within the requirement. The question for decision is whether there was evidence which would warrant a finding that Audet was a “duly authorized agent” within the meaning of the policy.

We do not find it necessary to analyze the correspondence between the plaintiff, or Audet, and counsel for the company, which disclaimed any obligation to indemnify the plaintiff because no notice had been given. While its perusal may tend to show that the defendant understood that the scope of Audet’s agency did not cover authority to receive and accept the notice, yet he was a witness at the trial, and the jury, even if his evidence was conflicting, could find that, not only was he empowered to countersign, issue the policy and receive the premium to be forwarded to the home office less his commission, but-he had received from the defendant a general agent’s commission which authorized him to transact in behalf of the defendant a general liability insurance business, to sign contracts and approve transfers and assignments of policies and in general to do everything pertaining to the proper carrying out of all the business of the company. If the jury found that he had been clothed with these powers, it followed that the plaintiff was justified in assuming that notice to Audet would be a sufficient compliance with the condition. Hall v. Bates, 216 Mass. 140, 143, and cases cited.

The defendant’s request that upon all the evidence the plaintiff was not entitled to recover could not have been'given, and its exceptions must be overruled.

So ordered.