Birnbaum v. Pamoukis

• Decision Date: 08 December 1938
• Parties: BIRNBAUM v. PAMOUKIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 559

17 N.E.2d 885

BIRNBAUM

v.PAMOUKIS et al.

Supreme Judicial Court of Massachusetts, Hampden.

Dec. 8, 1938.

Suit brought under statute by Wilfred Birnbaum, by next friend, against Theodore Pamoukis and the Preferred Accident Insurance Company of New York to apply an alleged obligation of the Company to Theodore Pamoukis under the extraterritorial coverage of an automobile liability policy, in satisfaction of plaintiff's judgment against Theodore Pamoukis. From a decree for the Preferred Accident Insurance Company of New York, plaintiff appeals.

Decree affirmed.Appeal from Superior Court, Hampden County; W. A. Burns, Judge.

J. I. Robinson and C. D. Sloan, both of Springfield, for appellant.

E. H. Wright, of Springfield, for appellees.

QUA, Justice.

The plaintiff has secured a judgment against the defendant Pamoukis for bodily injuries received in an accident in the State of Connecticut resulting from the operation by that defendant of an automobile upon which the defendant The Preferred Accident Insurance Company of New York, hereinafter called the company, had issued a policy of liability insurance. This suit is brought under G.L.(Ter.Ed.) c. 175, § 113, and G.L.(Ter.Ed.) c. 214, § 3(10), to reach and apply the alleged obligation of the company to Pamoukis in satisfaction of the plaintiff's judgment.

As the obligation which the plaintiff is seeking to reach, if any exists, arose under the extraterritorial coverage of the policy and not under the Massachusetts compulsory insurance provisions, any defence which would be available to the company against Pamoukis is equally available against the plaintiff. Sleeper v. Massachusetts Bonding & Ins. Co., 283 Mass. 511, 512, 186 N.E. 778;Phillips v. Stone, Mass., 8 N.E.2d 890. The defence upon which the company relies is that Pamoukis violated a provision of the policy requiring him to co-operate with the company in the defense of the original action, in that he failed to appear upon request to testify in his own behalf at a hearing before an auditor appointed in that action.

We are confronted at the outset with a question as to the scope and effect of the judge's findings of fact. The plaintiff contends that the defence cannot prevail and that the decree in favor of the defendant was erroneous because the judge did not set forth any specific finding that the policy contained any ‘co-operation clause’ or any specific findings showing such intentional or inexcusable absence from the hearing on the part of Pamoukis as would constitute a breach of such clause if the policy did contain one. This contention cannot be maintained. The evidence is not reported. The judge made brief findings of fact in connection with his order for decree, but he did not state that the findings expressed were all of the findings upon which he based his decree, and there is nothing in their form to indicate that he intended them as such. Apparently these findings were made voluntarily and not as a report of ‘the material facts found by him’ under G.L.(Ter.Ed.) c. 214, § 23. The entry of the decree imported a finding of every fact essential to sustain it and within the scope of the pleadings. Glazier v. Everett, 224 Mass. 184, 112 N.E. 1009;Star Brewing Co. v. Flynn, 237 Mass. 213, 216, 129 N.E. 438;Whitney v. Whitney, Mass., 13 N.E.2d 401. See Briggs v. Sanford, 219 Mass. 572, 107 N.E. 436;Seager v. Dauphinee, 284 Mass. 96, 98, 187 N.E. 94. This is true even though the judge made specific findings of certain facts, as long as he did not purport to state all of the material facts. Cleveland v. Hampden Savings Bank, 182 Mass. 110, 65 N.E. 27;Gladstone v. Aronson, 277 Mass. 163, 165, 178 N.E. 285. GoodyearTire & Rubber Co. v. Bagg, 292 Mass. 125, 127. See Commissioner of Banks v. Comopolitan Trust Co., 249 Mass. 144, 147, 144 N.E. 73;Berman v. Coakley, 257 Mass. 159, 162, 153 N.E. 463;Romanausky v. Skutulas, 258 Mass. 190, 192, 154 N.E. 856;Karas v. Karas, 288 Mass. 460, 462, 193 N.E. 18;Rosemont v. Equitable Life Assurance Society of the United States, Mass., 16 N.E.2d 654. This case is to be distinguished from cases where the judge has made a report of ‘the material facts' under the statute or has otherwise indicated that the facts stated by him are all the facts which entered into his decree. In such cases there is no room for any implication of further findings. Topor v. Topor, 287 Mass. 473, 476, 192 N.E. 52;Goldston v. Randolph, Mass., 199 N.E. 896, 103 A.L.R. 1117.

In the case of Cohen v. Nagle, 190 Mass. 4, at page 5, 76 N.E. 276, 2 A.L.R.,N.S., 964, 5 Ann.Cas. 553, the statement was made, and it has occasionally been repeated, that a report of facts voluntarily made by the trial judge has the same effect as a report of ‘the material facts' under the statute. See, for example, Lindsey v. Bird, 193 Mass. 200, 201, 79 N.E. 263;Howe v. Howe, 199 Mass. 598, 601, 85 N.E. 945,127 Am.St.Rep. 516;Smith v. Smith, 222 Mass. 102, 103, 109 N.E. 830;Taylor v. Jones, 242 Mass. 210, 216, 136 N.E. 382;Berman v. Coakley, 257 Mass. 159, 161, 153 N.E. 463; and Edwards v. Cockburn, 264 Mass. 112, 115, 162 N.E. 225. This statement cannot be understood to mean that a voluntary finding of certain facts only which may not amount to a full report of all the facts upon which the decree rests is for all purposes equivalent to the complete report of ‘the material facts' contemplated by the statute. In the cases just cited the precise question here presented was not before the court. The distinction between findings which are complete and those which are incomplete seems to have been in the mind of the court in Romanausky v. Skutulas, 258 Mass. 190, at page 192, 154 N.E. 856, and Goldston v. Randolph, Mass., 199 N.E. 896, 103 A.L.R. 1117.

It is, however, open to the plaintiff to contend, and he does contend, that the findings specifically stated by the judge in themselves necessarily preclude the maintenance of a defence based on failure...