American Mut. Liab. Ins. Co. v. Condon

• Decision Date: 03 November 1932
• Parties: AMERICAN MUT. LIABILITY INS. CO. v. CONDON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 517

183 N.E. 106

AMERICAN MUT. LIABILITY INS. CO.

v.CONDON.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 3, 1932.

Appeal from Superior Court, Middlesex County; Broadhurst, Judge.

Suit by the American Mutual Liability Insurance Company against William F. Condon and others. From interlocutory decrees referring the case to a master and confirming the master's report, and from a final decree in favor of plaintiff against named defendant, such defendant appeals.

Affirmed.William A. Lackey, of Boston, for appellant.

John W. Coughlin, of Boston, for appellee.

FIELD, J.

By this suit in equity, brought in the superior court, the plaintiff, an insurance company, sought from three defendants, William F., David, and James Condon, alleged to be doing business under the firm name of W. F. Condon and Sons Company, an accounting for premiums due under a policy of automobile liability insurance. The trial judge made findings of fact including a finding on all the evidence that the defendant William F. Condon applied for the policy of insurance in the plaintiff company, that ‘the company issued and delivered to him a policy * * * in accordance with his application and made a valid contract of insurance with him,’ and that no contract was made with the other defendants. He refused to rule as requested by the defendant William F. Condon. The case was referred to a master to ‘take an account and determine the amount of the premium’ the plaintiff is entitled to receive from this defendant under the policy. The master filed a report and after recommittal thereof a supplemental report which were confirmed by an interlocutory decree. Thereafter a final decree was entered adjudging William F. Condon, hereinafter referred to as the defendant, to be indebted to the plaintiff in the sum of $329.85 with interest, and ordering execution to issue. The defendant appealed from the interlocutory decrees referring the case to a master and confirming the master's report and from the final decree. Neither the evidence before the judge nor that before the master is reported.

The defendant contends that there was no contract of insurance binding him because the policy was issued on the Lord's Day, because it refers to the insured as a corporation, and because it was not accepted by the defendant, but that if there was a contract binding upon him the amount of premium due thereunder is computed incorrectly. He contends also that a copy of a letter was wrongly admitted in evidence by the master.

First. The finding by the judge on all the evidence that a valid contract of insurance was made-a finding of fact though deducible from other facts and involving rulings of law-imports a finding of subsidiary facts, not inconsistent with the reported findings, which on a correct view of the law would support the ultimate finding. Dobias v. Faldyn, 278 Mass. 52, 58, 179 N. E. 219. The reported findings are not inconsistent with possible findings which would sustain the conclusion reached.

[3] The reported findings do not require the conclusion that the policy was illegal on the ground that it was issued on the Lord's Day. See G. L. (Ter. Ed.) c. 136, § 5; O'Brien v. Shea, 208 Mass. 528, 534, 535, 95 N. E. 99, Ann. Cas. 1912A, 1030. The finding that on Saturday, February 20, 1926, the plaintiff sent the policy by mail to the defendant and that it was received in due course of mail is consistent not only with the mailing of the policy on Saturday, but also with the receipt thereof by the defendant on that day. The plaintiff's place of business was in Boston and the defendant's in Cambridge. Consequently we need not consider whether the contract was completed before the policy was received by the defendant. See, however, Commonwealth Mutual Fire Ins. Co. v. William Knabe & Co. Manuf. Co., 171 Mass. 265, 270, 50 N. E. 516;Stone v. Old Colony Street Railway, 212 Mass. 459, 462, 463, 99 N. E. 218. The statement in the policy that it was ‘issued’ by the plaintiff and was ‘countersigned’ February 21, 1926 (which was Sunday), even if interpreted to mean issued as well as countersigned on that day, is not incompatible with the judge's conclusion. The fact that the policy bore date of Sunday does not invalidate it (Banca Italiana Di Sconto v. Columbia Counter Co., 252 Mass. 552, 560, 148 N. E. 105), and the recital therein that it was issued and countersigned on that day is not conclusive but may be controlled by other evidence (Lee v. Massachusetts Fire & Marine Ins. Co., 6 Mass. 208, 219;Hill v. Dunham, 7 Gray, 543;Dresel v. Jordan, 104 Mass. 407, 417). Even if, as we need not decide, the sworn statement in the original bill of complaint that the ‘date of issue’ of the policy was February 21, 1926, changed by amendment to describe the policy as ‘effective as of February 21, 1926,’ was proper for consideration by the judge as an admission by the plaintiff, it could have been shown to have been made under a mistake. Elliott v. Hayden, 104 Mass. 180, 183. Nor was the policy illegal because it became effective on Sunday. See Stacy v. Kemp, 97 Mass. 166, 167, 168.

The finding that a valid contract of insurance was made between the plaintiff and the defendant is not incompatible with the reference in the policy to the insured as a corporation.

The policy purports to have been issued to W. F. Condon and Sons Company. The only reference therein to the insured as a corporation is in the ‘Declarations.’ The policy recites that the plaintiff ‘in consideration of the premium and the declarations forming part hereof, does hereby agree with the insured named and described as such in said declarations, to indemnify the insured against loss by reason of the liability imposed upon him by law for damages, because of the ownership, maintenance, and/or use of the automobile named and described in the declarations' on account of personal injury or property damage. Under the heading ‘Declarations' it is stated that ‘the following declarations are the representations of the insured and this policy is issued by the company relying upon the truth thereof.’ Item 1 thereof states the ‘name of insured’ as ‘W. F. Condon and Sons Company,’ item 3 states that the ‘insured is corporation,’ and item 8 refers to an attached schedule of automobiles covered by the policy and premium charges therefor. The judge found that William F. Condon did business under the name of ‘William F. Condon & Sons Company’ and ‘W. F. Condon & Sons Company,’ that he was the sole proprietor of the business and ‘there is no corporation of the name of the William F. Condon & Sons Company or W. F. Condon & Sons Company.’

The judge found also that at an interview between a solicitor for the plaintiff and the defendant an application for insurance was made out by the solicitor and signed by the defendant, ‘signing as ‘W. F. Condon and Sons Company by W. F. Condon,’' that this application was accompanied by a schedule showing ‘the premium rates of the proposed insurance and particulars as to the automobiles to be insured,’ that the plaintiff sent the policy to the defendant by mail, as already stated, and that the ‘premiums in this policy were reckoned upon the basis of the schedule accompanying the application.’

There is nothing in the findings to indicate that the policy did not cover the automobiles referred to in the defendant's application. Nor, unless in the statement in the declarations that the insured is a corporation, is there anything to indicate that the policy was not issued to the defendant as an individual. The defendant could have contracted under that name. William Gilligan Co. v. Casey, 205 Mass. 26, 31, 91 N. E. 124;Crompton & Sons v. Williams, 216 Mass. 184, 186, 187, 103 N. E. 298.

The statement in the policy that the insured is a corporation did not preclude a finding upon evidence that the defendant under the name in which he did business was the insured named in the policy. It was permissible for the plaintiff to show that the erroneous description of W. F. Condon and Sons Company as a corporation was inserted in the policy by mistake, that the parties were not mistaken as to the identity and character of the insured, and that the defendant as an individual doing business under that name was in fact the party making the contract of insurance and intended by both parties to be insured under the policy. See Lunn & Sweet Co. v. Wolfman, 256 Mass. 436, 441, 152 N. E. 893, and cases cited; Id., 268 Mass. 345, 353, 167...