Bergeron v. Auto. Mut. Liab. Ins. Co.
| Decision Date | 23 November 1927 |
| Parties | BERGERON v. AUTOMOBILE MUT. LIABILITY INS. CO. et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Bristol County; Joseph Walsh, Judge.
Suit in equity by Denery Bergeron, administrator, against the Automobile Mutual Liability Insurance Company and others. Plaintiff's motion to frame a jury issue was denied, and he excepts. Affirmed. Decree to be entered in accordance with opinion.
D. R. Radovsky and H. W. Radovsky, both of Fall River, for plaintiff.
E. Martin and A. E. Yont, both of Boston, for defendants.
This is a bill in equity, under G. L. c. 214, § 3, cl. 10, to recover against the defendant insurance company a judgment debt which the plaintiff, as administrator of the estate of Gerard Bergeron, had obtained previously against the defendant Mary Anna Janson, the administratrix of the estate of Hubert Fontaine, in an action of tort based upon injuries received by, and the death of, said Gerard Bergeron caused by the said Hubert Fontaine in the operation of an automobile on or about June 21, 1922.
The defendant insurance company in its answer ‘admits that it issued a policy of insurance to the said Hubert Fontaine, but denies that the said Hubert Fontaine has complied with the terms and conditions of the said policy and denies that it is liable to the said plaintiff in this action’; and in its amended answer says ‘that the contract of insurance between the respondent and the said Hubert Fontaine expressly provided that the agreement was subject among others to the following condition, namely, ‘The insured shall give immediate notice with full particulars, in form prescribed by the company, of any accident covered by this policy; shall promptly advise the company of any claim or demand made in respect thereto, with full particulars;’' and further, that the said Hubert Fontaine did not give immediate notice of the accident upon which the original action was brought and judgment rendered, and upon which this bill of particulars is based, and did not give like notice with full particulars of any claim on account of such injuries.
On the day of the filing of the amended answer and subsequently thereto, the plaintiff filed a motion for jury issues as follows:
‘Now comes the petitioner in the above-entitled proceedings and moves that the following issue may be framed for a trial by jury in the superior court: ‘Did Hubert Fontaine, the insured, give immediate notice of the accident upon which the original action was brought, and of the claim on account of said accident?’'
This motion was ‘denied as a matter of law.’ The plaintiff excepted and upon the agreement of the parties reported the case to this court.
[1][2] The question of law intended to be presented to this court is not clear. We assume the denial, as matter of law, of the request of the plaintiff to frame issues for trial by jury was not on the ground that the judge in his discretion was without authority to frame issues to a jury in any equity proceedings or in supplementary proceedings, under G. L. c. 214, § 3, cl. 10. In the exercise of sound discretion a judge, sitting in equity, has power to submit or deny issues of fact to a jury. Parker v. Simpson, 180 Mass. 334, 62 N. E. 401;Shapira v....
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