EVERETT E. ROONEY vs. LUDLOW MFG. & SALES SOCIAL & ATHLETIC CLUB, INC.

SPALDING, J. On February 1, 1949, the plaintiff, a business invitee of the defendant, was injured when he slipped and fell by reason of an accumulation of snow and ice on a stairway on the defendant's premises. The plaintiff had a verdict which was recorded under leave reserved. Thereafter the judge entered a verdict for the defendant, subject to the plaintiff's exception. The bill of exceptions states that the sole question for decision is whether the plaintiff "gave notice to the defendant as required by G. L. (Ter. Ed.) c. 84, Section 18, and in the manner set forth in Section 21."

The facts relating to this issue are these. At the time of the accident "the defendant had in force a general liability insurance policy (owners', landlords', and tenants' form) with the Liberty Mutual Insurance Company," hereinafter called Liberty. This policy, which is before us, appears to be broad enough to cover liability of the sort here involved and no contention is made to the contrary. On February 9, 1949 (eight days after the accident), one Silva, an investigator of Liberty, called on the plaintiff and obtained from him a written statement setting forth the details of the accident. The statement was signed by the plaintiff. "There was no evidence that the defendant had any knowledge that Silva was going to contact the plaintiff or take a written statement from him." It is agreed that "no writing, other than . . . [this statement], was made by the plaintiff within thirty days after the accident." There was no evidence that the statement was ever given by Liberty to the defendant. Pertinent provisions of the defendant's insurance policy are the following: "As respects such insurance as is afforded by the other terms of this policy the company shall (a) defend in his name and behalf any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the company . . .. If claim is made or

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suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative."

We are not called upon to decide whether the statement sufficiently set forth the time, place and cause of the injury in accordance with G. L. (Ter. Ed.) c. 84, Sections 18-21, as amended. The parties agree that the question for decision is whether the plaintiff by giving the statement to Liberty's investigator gave the notice required by the statute.

To recover the plaintiff was required to prove that he gave to the defendant a written notice of the time, place, and cause of the injury within thirty days after the injury. G. L. (Ter. Ed.) c. 84, Sections 18-21. DePrizio v. F. W. Woolworth Co. 291 Mass. 143. Regan v. Atlantic Refining Co. 304 Mass. 353. The giving of the statement to Liberty's investigator did not constitute such notice. The defendant was the person primarily liable, and the fact that it had a contract of insurance with Liberty did not alter the situation. If the judgment obtained by the plaintiff exceeded, as it might, the amount covered by the policy, the defendant would have to pay it. And there might be circumstances in which the defendant might have to pay the entire judgment. For example, the policy contains the usual cooperation clause, and if the defendant failed to fulfill its obligations under that clause Liberty could disclaim liability with the result that the defendant would not have the benefit of the policy. See Salonen v. Paanenen, 320 Mass. 568. It is no answer to say that in most, if not all, cases a defendant would turn over notices of this sort to the insurer as, indeed, he is required to do under the policy here involved. A defendant still ought to have the notice to which he is entitled under the statute. He may desire to make his own investigation of the accident, and he is not in a position to do so if he does not have the statutory notice. It is not within our power to extend the statute to reach a situation not comprehended by it.

The plaintiff argues that when Liberty's investigator obtained the statement from him he was acting as agent for

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the defendant. In support of this position he relies on Hayes v. Gessner, 315 Mass. 366. In that case there was evidence that at a time when the plaintiff had a good case an adjuster of the defendant's insurance company persuaded the plaintiff not to seek legal advice and to wait until the bar of the statute fell by promising him that he could bring the matter up later and could have at least $1,500 at any time. It was held that the conduct of the adjuster of the defendant's insurer bound the defendant and estopped him from setting up the statute of limitations. In that case where the insurer under the policy had "the sole right of settlement and defense" the court reasoned that the defendant could not "turn over to an insurer the whole management of the subject of settlements in his behalf and accept the benefit of the insurer's efforts when they are successful and relieve him from liability but repudiate their consequences when they affect his defence adversely" (page 369). The case at bar is distinguishable. Here the insurer had "the right to make such investigation . . . of any claim or suit as may be deemed expedient by the company," but it did not have the exclusive right to do so. The defendant could still make such investigation as it saw fit and, as we have observed above, might desire to do so. We do not read the Gessner case as laying down the broad proposition that the relationship of assured and insurer creates a general relationship of principal and agent. That would be a difficult proposition to maintain. Whether there might be instances other than that involved in the Gessner case where the insurer could be held to be the assured's agent need not be decided. For present purposes it is enough to say that, if there are any, this is not one of them.

By reason of his failure to give the statutory notice the plaintiff had no case (Regan v. Atlantic Refining Co. 304 Mass. 353, 354), and the judge rightly entered a verdict for the defendant.

Exceptions overruled.

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