Benoit v. Fisher
| Decision Date | 10 November 1960 |
| Citation | 341 Mass. 386,169 N.E.2d 905 |
| Parties | William L. BENOIT v. Ronald FISHER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William I. Sabin, Williamstown, for plaintiff.
Charles M. Healey, III, Springfield, for defendant General Accident Fire & Life Assur. Corp.
Before WILKINS, C. J., and SPALDING, WHITTEMORE and CUTTER, JJ.
On May 6, 1958 (in North Adams), an automobile owned and operated by Ronald Fisher collided with an automobile owned by William Benoit. Thereafter, in an action of tort for property damage brought against Fisher, Benoit recovered a judgment in the amount of $1,008.50.
This suit is brought by Benoit against Fisher and General Accident Fire and Life Assurance Corporation (hereinafter called the insurer) to reach and apply the obligation of the insurer under a motor vehicle liability policy issued by it to Fisher. See G.L. c. 175, § 113; c. 214, § 3(10). A decree was entered dismissing the bill against both defendants, from which the plaintiff appealed. The evidence is reported and the judge found the material facts.
Facts found by the judge and by us include the following. On January 1, 1958, the insurer issued a motor vehicle liability policy to Fisher. The protection afforded by the policy was $10,000 and $20,000 for personal injuries, and $5,000 for property damage. In the latter part of March, 1958, Alton Perry (an agent of the insurer through whom Fisher obtained the policy) tolf Fisher that the premium had not been paid, and that since he (Perry) would have to settle his accounts with the insurer in April, he would like to have the premium paid. Fisher told Perry that he was in financial straits, and they then discussed methods of reducing the premium by diminishing the coverage. They agreed to modify the policy by reducing the personal injury coverage to the compulsory amount ($5,000 and $10,000) and by eliminating the coverage for property damage. An 'Automobile Questionnaire' on a form supplied by Perry was filled in and signed by Fisher. It was dated January 1, 1958. In the blanks relating to the type of coverage desired only the statutory coverage was mentioned. This questionnaire was forwarded by Perry (whose place of business was in Williamstown) to the insurer's regional office in Springfield and it was stamped 'Received Springfield * * * March 27, 9:32, 1958.'
On May 7, 1958, the day after the accident, Fisher went to Perry's office and told him about it. Perry informed him that he was not covered for property damage. Fisher then, at Perry's request, signed a 'property damage form, acknowledging the fact that * * * [the insurer] had removed * * * [the property damage] coverage as of January 1,' 1958. This form was referred to by Perry as an 'indorsement' and he stated that he 'had only had * * * [it] a few days' before Fisher signed it. We infer that this had been sent to Perry by the insurer.
The question for decision is whether the property damage coverage was in effect on May 6, 1958, the date of the accident. If it was, then the insurer's obligation under the policy was fixed and nothing that occurred on May 7 could impair that obligation. G.L. c. 175, § 112. 1 The answer to this question depends on whether there was an effective modification of the policy prior to the accident. If there was such a modification it must have resulted from the agreement entered into between Fisher and Perry in the latter part of March. It is to be noted that we are not here concerned with a cancellation of compulsory coverage. Hence the requirements prescribed by G.L. c. 175, § 113A(2), do not apply. The plaintiff concedes that Fisher and Perry in March, 1958, took the steps outlined above with respect to eliminating the property damage coverage. Indeed, the evidence on this point is virtually undisputed. The plaintiff contends, however, that, although a reduction of coverage had been agreed upon by both Perry and Fisher, this had not become effective when the accident occurred on May 6. His argument in support of this position is substantially this. Perry, from aught appearing in this record, did not have the authority to cancel or modify the policy. All that he could do was to initiate steps to that end, and until there was some affirmative action by the insurer, by way of an indorsement or otherwise, cancelling or modifying the policy, the original policy was in effect. We are of...
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