Arnold v. Jacobs

• Decision Date: 27 April 1944
• Parties: ARNOLD v. JACOBS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 81

54 N.E.2d 922

ARNOLD

v.JACOBS et al.

Supreme Judicial Court of Massachusetts, Essex.

April 27, 1944.

Suit by Cedric L. Arnold, administrator of the estate of Rosetta M. Jacobs, deceased, against Morton R. Jacobs and the Maryland Casualty Company, insurer under a policy of liability insurance covering the operation of an automobile, to reach and apply the obligation of the insurer under that policy and the insurance money payable in satisfaction of a judgment obtained by the plaintiff against defendant first named in an action of tort for negligence in operation of automobile. Decree ordering insurer to pay the entire judgment with interest and costs, and the insurer appeals.

Affirmed.Appeal from Superior Court, Essex County; Giles, Judge.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, RONAN, and WILKINS, JJ.

J. W. Sullivan, of Lynn, for plaintiff.

A. X. Dooley, of Lawrence, for defendant.

LUMMUS, Justice.

The plaintiff administrator of the estate of Rosetta M. Jacobs brings this bill under G.L.(Ter.Ed.) c. 214, § 3(10), and c. 175, § 113, against Morton R. Jacobs and Maryland Casualty Company, the insurer under a policy of liability insurance covering the operation of an automobile, to reach and apply the obligation of the insurer under that policy and the ‘insurance money’ payable by the insurer, in satisfaction of a judgment obtained by the plaintiff administrator on July 22, 1940, for $10,000 damages with interest and costs against said Morton R. Jacobs in an action of tort for his negligence in the operation of the automobile, which caused the death of his mother, the plaintiff's intestate. See Arnold v. Jacobs, 305 Mass. 427, 26 N.E.2d 316;Oliveria v. Oliveria, 305 Mass. 297, 25 N.E.2d 766.

The plaintiff's intestate, on January 25, 1937, was hurt while riding in the automobile, which came into collision on a public way in Swampscott with an automobile operated by one Delisio. The plaintiff's intestate died of her injuries on January 29, 1937, without conscious suffering. She was survived by her husband, Charles H. Jacobs, and her two children, Morton, aged sixteen, and Charlotte, aged twelve. The automobile was owned by her husband, who was named as insured in the policy, and was not present at the time of the collision. Morton R. Jacobs was operating the automobile with his consent. A demand for satisfaction of the judgment was duly made upon each defendant, but nothing was paid.

The policy defined a ‘guest occupant’ as ‘any person, other than an employee of the owner or registrant of a motor vehicle or of a person responsible for its operation with the owner's or registrant's express or implied consent, being in or upon, entering or leaving the same,’ except a passenger for hire. The compulsory automobile liability insurance law had ceased to apply to guest occupants like the plaintiff's intestate (St.1935, c. 459, §§ 1, 2, amending G.L.(Ter.Ed.) c. 90, § 34A; Westgate v. Century Indemnity Co., 309 Mass. 412, 35 N.E.2d 218;Joyce v. London & Lancashire Indemnity Co., 312 Mass. 354, 44 N.E.2d 776), and the material coverage was the one contained in ‘Coverage B’ of the policy. Under that coverage the insurer agreed to ‘pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages * * * because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons * * * caused by accident and arising out of the ownership, maintenance or use of the motor vehicle.’ The policy made a guest occupant upon the ways of the Commonwealth one of the ‘persons' mentioned in the foregoing quotation. The policy also made the word ‘insured’ in that quotation include ‘not only the named insured but also any person while using the motor vehicle * * * with the permission of the named insured,’ with immaterial exceptions. The limit of coverage for the death of one person was $10,000.

After a final decree ordering the insurer to pay the entire judgment with interest and costs, the insurer appealed. It makes three contentions in reduction of its liability. These will be considered in order.

1. It contends that it should be credited with $2,000 paid by delisio in compromise of an action brought against him by the plaintiff administrator to recover for the same death, in consideration of which sum the plaintiff administrator gave Delisio a covenant not to sue him. If the damages recoverable for death had been compensatory, the plaintiff administrator would have been entitled to compensation only once, and would have been required to credit the $2,000, O'Neil v. National Oil Co., 231 Mass. 20, 120 N.E. 107;Solomon v. Dabrowski, 295 Mass. 358, 359, 3 N.E.2d 744, 106 A.L.R. 464;Karcher v. Burbank, 303 Mass. 303, 21 N.E.2d 542, 124 A.L.R. 1292;Daniels v. Celeste, 303 Mass. 148, 21 N.E.2d 1, 128 A.L.R. 682;Sacchetti v. Springer, 303 Mass. 480, 22 N.E.2d 42. But notwithstanding the fact that in some aspects the action for death has remedial purposes and has even been said to be in a sense ‘compensatory’ (Sullivan v. Hustis, 237 Mass. 441, 447 et seq., 130 N.E. 247, 15 A.L.R. 1360;Putnam v. Savage, 244 Mass. 83, 138 N.E. 808), the damages are assessed ‘with reference to the degree of * * * culpability,’ within the limits of $500 (since St.1941, c. 504, § 3, $1,000) and $10,000. G.L.(Ter.Ed.) c. 229, § 5, amended after the death in this case by St.1937, c. 406, § 3. And in the main the action is penal. Arruda v. Director General of Railroads, 251 Mass. 255, 147 N.E. 21;Porter v. Sorrell, 280 Mass. 457, 182 N.E. 837, 85 A.L.R. 1159;Macchiaroli v. Howell, 294 Mass. 144, 147, 200 N.E. 905;O'Connor v. Benson Coal Co., 301 Mass. 145, 148, 16 N.E.2d 636;Oliveria v. Oliveria, 305 Mass. 297, 301, 302, 25 N.E.2d 766. The fact that there must be some living statutory beneficiary entitled to receive the penalty does not make the action other than penal. Hess v. Boston Elevated Railway, 304 Mass. 535, 539, 24 N.E.2d 550.

The statute, following a pattern familiar in criminal and penal provisions, limits the penalty that can be imposed upon one person for causing one death. It does not limit the amount that can be collected from a number of wrongdoers for one death. Logically, as in the criminal law, each wrongdoer may be made to suffer the maximum penalty, no matter how many are guilty. For this reason, the amount of money paid by Delisio is immaterial. The reasoning in Porter v. Sorrell, 280 Mass. 457, 182 N.E. 837, 85 A.L.R. 1159, and Partridge v. United Elastic Corp., 288 Mass. 138, 146, 147, 192 N.E. 460, requires this conclusion. The case of Leonard v. Lumbermens Mutual Casualty Co., 298 Mass. 393, 10 N.E.2d 469, is not in point, because in that case there was only one real wrongdoer, although the doctrine of respondeat superior made his master responsible as well.

2. The executor or administrator in whom the statute vests the cause of action for death is required to hold the money recovered ‘to the use of the surviving wife or husband and children * * * in equal moieties.’ G.L. (Ter.Ed.) c. 229, §§ 1, 5, now varied as to section 1 by St.1943, c. 444, § 1, and now restated as to section 5 by St. 1941, c. 504, § 3. Except as now provided by St. 1943, c. 444, § 2, the money recovered is not an asset of the estate of the deceased, but constitutes a fund for distribution to the statutory beneficiaries. Turnquist v. Hanson, 219 Mass. 560, 562, 107 N.E. 443;Putnam v. Savage, 244 Mass. 83, 87, 138 N.E. 808.

The insurer contends that Charles N. Jacobs, the named insured, and Morton R. Jacobs, the described...