Garcelon v. Commercial Travelers' Eastern Accident Ass'n

67 N.E. 868, 184 Mass. 8, 1903 Mass. LEXIS 928

• Court: Massachusetts Supreme Judicial Court
• Decided: June 19, 1903
• Status: Published

Opinion

Barker, J.

1. Both before and since the statement in Burdon v. Massachusetts Safety Fund Association, 147 Mass. 360, that under a policy like that now in suit, “ it may be that an action at law would lie; but the more appropriate remedy would be by a proceeding in equity to compel the association to lay the assessment,” actions at law have been entertained in our courts upon similar policies. The fact that a plaintiff at law has another remedy in equity to which he might resort is not, commonly at least, a defence to his action at law. We think the policy sued on contains an implied contract on the part of the defendant that under the circumstances alleged it will levy an assessment, and that sufficient facts are alleged in the declaration to show a breach of that contract and that upon the admission as true of the allegations the plaintiff is entitled to judgment for the sum of $2,500.

2. The declaration is in contract, and the allegations as to bad faith, fraudulent purpose and unlawful action on the part of the defendant make it neither a declaration in tort nor a declaration having one count in contract and one in tort.

3. We consider the amputation of an arm a little below the elbow to be the loss of an arm in the common acceptation of those words and within their meaning as used in the policy, which specifies merely the “ loss of an arm ” without mentioning whether the loss is by amputation below or above the elbow joint.

In our opinion the demurrer should have been overruled, and the case is remanded to the Superior Court with directions to reverse the order sustaining the demurrer and to enter an order overruling it.

So ordered.