Coleman v. American Casualty Co.

237 N.E.2d 22, 354 Mass. 762

• Court: Massachusetts Supreme Judicial Court
• Decided: May 6, 1968
• Status: Published

Opinion

There was no error in denying the defendant’s motion for a directed verdict in this action on an accident and health policy. There was evidéncé that the fall was a cause of the plaintiff’s hospitalization and subsequent operation for a perforated diverticulum. Assuming that the jury accepted evidence that diverticula existed prior to the fall, the evidence of prior robust condition permitted the conclusion that, except for the fall, the trouble with the diverticulum would not have occurred. Hence the jury could find “loss resulting directly and independently of all other causes from accidental bodily injury.” The jury could have found that the written notice which the plaintiff mailed was given on or about May 7, 1962, when the attending physician signed the notice (the plaintiff having signed on April 10) and that this met the requirement of notice “within 20 days after . . . commencement of any loss ... or as soon thereafter as is reasonably possible.” The plaintiff was hospitalized from February 26 to March 20,1962, except for four days (March 1 to March 5), and from May 19 to June 16, 1962, except for two days (May 25 to May 27). During the period from January 20, 1962, to June, 1962, “the plaintiff had constant pain in his stomach which resulted in the above hospitalizations and was unable to attend to his medical practice for various periods during this time.” The defendant contends that the twenty days began to run not later, in any event, than March 20, 1962. Whether in all the circumstances, including the need for the physician’s signature, the grace period had expired was not matter of law. The notice of claim was adequate as the required proof of loss.

Exceptions overruled.