Wheeler v. O'Connell

• Citation: 297 Mass. 549,9 N.E.2d 544
• Parties: WHEELER v. O'CONNELL et al.
• Decision Date: 30 June 1937
• Court: United States State Supreme Judicial Court of Massachusetts

297 Mass. 549

9 N.E.2d 544

WHEELER

v.O'CONNELL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1937.

Suit in equity by Arthur G. Wheeler against Leo D. O'Connell and the Service Mutual Liability Insurance Company. From an interlocutory decree overruling the defendant insurance company's demurrer to the bill of complaint, and from a final decree for the plaintiff, the insurance company appeals.

Affirmed.Appeal from Superior Court, Suffolk County; Walsh, Judge.

F. L. Kozol and L. M. Friedman, both of Boston, for plaintiff.

G. E. Thompson, of Boston, for defendants.

PIERCE, Justice.

This is a suit in equity under G.L.(Ter.Ed.) c. 214, § 3(10), to enforce satisfaction of a judgment against Leo D. O'Connell, the operator of a motor vehicle owned by one Bell and insured by the defendant Service Mutual Liability Insurance Company under a motor vehicle liability insurance policy issued, in terms, in compliance with G.L.(Ter.Ed.) c. 90, § 34A. The defendant insurance company filed a demurrer to the bill of complaint for the alleged reason ‘that the matters contained therein are insufficient in law to enable the plaintiff to maintain his action.’ This demurrer was overruled by an interlocutory decree. Thereafter, when the parties agreed that there would be no further pleadings by either of them, a final decree was entered ordering the insurance company to pay the amount of the execution against the defendant O'Connell. The case is before this court on the appeals of the insurance company from the interlocutory and final decrees.

The facts as they appear directly or by inference in the bill of complaint are in substance as follows: On April 29, 1935, at seven in the evening the plaintiff was an investigator and examiner, duly appointed by the registrar of motor vehicles under G.L.(Ter.Ed.) c. 90, § 29, with all the powers therein described, which include the power ‘to arrest any person who violates any provision of this chapter.’ On April 29, 1935, he observed the defendant O'Connell operating a truck, owned by one Bell, on Elm Street, a public highway in the city of Somerville, in such a wilful, wanton and reckless manner ‘that the lives and safety of the public might be, and in fact were, endangered thereby’ and recognized that such conduct was in violation of G.L.(Ter.Ed.) c. 90, § 24. In performance of his official duty the plaintiff caused the truck to stop; he got on its left running board, showed his badge, indentified himself as a motor vehicle inspector, and asked O'Connell to show his license and the truck's certificate of registration. O'Connell heard what the plaintiff said, looked at his badge, answered, ‘I don't care who you are,’ started the truck forward and gave the plaintiff a push on the shoulder with his hand. The plaintiff reached in, turned and removed the switch key, and thereby cut off the power. Pending this completed action O'Connell turned the truck sharply to the right which caused the plaintiff to lose his balance and to receive severe injuries to his left hand.

Some time thereafter O'Connell pleaded guilty in a criminal court to a charge of so negligently operating the truck that the lives or safety of the public might be endangered and to a further charge of refusing to show his operator's license when required to do so by an examiner appointed by the registrar of motor vehicles. To recover for his injuries the plaintiff sued O'Connell in an action of tort in the Municipal Court of the City of Boston. At the trial of that case the judge found ‘that the plaintiff received his injury as a result of wilful, wanton and reckless conduct of O'Connell, and that there was no negligence or gross negligence,’ and assessed damages in the sum of $640. That case went to judgment and execution issued for $663.75. Due demand for payment was made on both O'Connell and Service Mutual Liability Insurance Company, and when thirty days had elapsed without satisfaction of the judgment this suit was commenced.

On the above facts the issue raised by the defendant insurance company is ‘whether a motor vehicle liability policy as defined by G.L.[Ter.Ed.] c. 90, § 34A, comprehends an injury caused by the wilful, wanton and reckless act of the operator of a motor vehicle and provides protection to a traveller on the highway who suffers personal injury by reason of such conduct.’ The insurance company directs attention to the fact that there is no copy of the policy in the record, but admits in argument that the policy was issued in accordance with the provisions of G.L.(Ter.Ed.) c. 90, § 34A, and further admits that it must be presumed to contain the matters of substance required by the statute. See O'Roak v. Lloyds Casualty Co., 285 Mass. 532, 535, 189 N.E. 571. In support of its demurrer the insurance company contends that said section 34A protects only persons injured ‘in accidents caused by negligence’; that said section 34A defines a motor vehicle liability policy as a policy of liability insurance which provides indemnity for the insured and any person responsible for the operation of the insured's motor vehicle with an express or implied consent against loss by reason of the liability to pay damages to others for bodily injuries, including death, sustained during the term of said policy, and ‘arising out of the ownership, operation, maintenance, control or use upon the ways of the commonwealth of such motor vehicle, to the amount or limit of at least five thousand dollars on account of injury to or death of any one person, and, subject to such limits as respects injury to or death of one person, of at least ten thousand dollars on account of any one accident resulting in injury to or death of more than one person, or a binder as defined in section one hundred and thirteen A of said chapter one hundred and seventy-five providing indemnity or protection as aforesaid pending the issue of such a policy.’ Confessedly the policy which is here involved was in full force and effect when the plaintiff was injured by the wilful, wanton and reckless conduct of O'Connell, who was the servant and employee of Bell, and at the time of the injury complained of was just finishing his day's work and was on his way back to the garage where the truck was kept.

At the outset it should be observed that the principles laid down in the cases dealing with ordinary insurance policies are not controlling in the case at bar. As was said in Guzenfield v. Liberty Mutual Ins. Co., 286 Mass. 133, 135, 190 N.E. 23, 24, speaking of the effect of G.L. c. 90 when amended by St.1925, c. 346, St.1928, c. 381, and St.1930, c. 340: ‘Detailed discussion of these cases [cited] is unnecessary since in the case before us there is present an element, lacking in them, which we deem of supreme importance,’ in that ‘The policy here in question...