Bovedeau v. Boston Casualty Co. , 273 Mass. 156 ( 1930 )

Wait, J.

This is an appeal from a decision by an Appellate Division dismissing a report of rulings by a judge of the District Court of Springfield. The plaintiff brought suit upon a policy issued by the defendant indemnifying him for “disability illness,” but providing that “no indemnity shall be paid for any illness which is contracted and begins before this Policy has been in force for thirty (30) days.” There was evidence that the plaintiff underwent an operation for appendicitis several months before August 22, 1927; that, as a result of that operation, adhesions formed in his intestines; that, on August 22, an obstruction in the intestine at one of these adhesions caused him such pain that he fell and was taken to a hospital for treatment. He claimed damages for the incapacity following this attack of illness on August 22. The policy was issued and took effect on July 20, 1927. The defendant contends that the illness arose and began before the policy had been in force thirty days. The trial judge and the Appellate Division were right in not yielding to this contention. The report, which it was agreed stated all the material evidence, sets out that the policy by its terms was a “ Disability Policy,” which did not “ insure for any bodily disorder that may exist unless it reaches the stage, degree or culmination of physical disability, and then only from the moment that the disability actually occurs . . . there is no illness recognized by the defendant in its Policy until and unless it is an illness signalized by disablement . . . .” The ruling was correct that “ therefore disablement from illness marks the time when the illness covered by and recognized in the Policy begins.” It is supported by Craig v. United States Health & Accident Ins. Co. 80 S. C. 151, Guy v. United States Casualty Co. 151 N. C. 465 and Grant v. North American Casualty Co. 88 Minn. 397. “ Illness ” in the proviso must be given the meaning of “ illness ” in the body of the policy. The word “ and ” in the proviso is significant. Indemnity is payable only for illness contracted and begun after the policy has been in force for thirty days. A cause for disability — the adhesion, which may or may not, in fact, have brought on the particular disability that occurred — although existing before the policy issued, is not enough by itself to constitute an illness exempted by the proviso. There must be also a disability beginning within the thirty days. The disability here indemnified against began on August 22, more than thirty days after July 20.

The further contention that the plaintiff 0 was barred by a release under seal is not sustained. There was evidence that two agents of the defendant called on the plaintiff while in bed at home. One of them said he was sorry that they could do nothing for him since the policy was not old enough; but said to the other: “ Give him $40.” The latter said: “ We’ll give him $20.” They then gave the plaintiff a check for $20, and one of them said that he would be back to see him. No one in fact returned. On the back of the check was a printed release of all claims under the policy, with space for signature followed by a seal. The plaintiff’s attention was not called to this, and he knew nothing of it. His wife presented the check at a bank where, in his absence, she signed the plaintiff’s name opposite the seal, indorsed the check herself and received the cash. This falls far short of proof that the wife had authority to execute a sealed release for the husband. The finding that “Ignorant of his rights and expecting the agent to see him again, he merely procured the cashing of the check by his wife ” is justifiable; and the ruling that he was not bound by the release is sound. Hunt v. Rhodes Brothers Co. 207 Mass. 30, Halbert v. Brooks, 238 Mass. 471, and Gold v. Boston Elevated Railway, 244 Mass. 144, cited by the defendant, do not establish as law that mere assent or direction by a husband to the cashing of a check by a wife is, necessarily, authority to the wife to execute a release, of which the husband knew nothing, even if the words of release were on the check when the wife received it; nor that the husband is bound by her act, if he receives the money. We have dealt with all that has been argued.

The order dismissing the report is affirmed.