Birnbaum v. Pamoukis
| Decision Date | 08 December 1938 |
| Citation | 17 N.E.2d 885,301 Mass. 559 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | WILFRED BIRNBAUM v. THEODORE PAMOUKIS & another. |
September 22, 1938.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, & RONAN, JJ.
Equity Pleading and Practice, Findings by judge. Insurance, Motor vehicle liability, Disclaimer of liability, Waiver. Estoppel. Waiver.
In a suit in equity under G. L. (Ter. Ed.) c. 214, Section 3 (10), to reach and apply the obligation of the insurer under the extraterritorial coverage of a motor vehicle liability policy, any defence which would be available to the insurer against the insured was equally available against the plaintiff.
In a suit in equity wherein there was no report by the judge of "the material facts found by him" under G. L. (Ter. Ed.) c 214, Section 23, nor report of the evidence, but the judge voluntarily made certain brief findings which did not purport to be a full report of all facts upon which the final decree was based, the entry of that decree imported a finding of every fact essential to sustain it and within the scope of the pleadings, so far as not inconsistent with the findings specifically made.
A voluntary finding by a judge, who heard a suit in equity, of certain facts only, which does not amount to a full report of all the facts upon which a final decree entered by his order rests, is not for all purposes equivalent to the complete report of "the material facts" contemplated by
G. L. (Ter.
Ed.) c. 214 Section 23. Findings that the insured in a motor vehicle liability policy failed to
"cooperate" in the defence of an action against him as required by the policy and that the insurer had not waived and was not estopped to rely on such failure were not inconsistent with certain specified findings respecting the conduct of the insured and the attorney for the insurer in connection with such action.
BILL IN EQUITY, filed in the Superior Court with a writ of summons and attachment dated May 10, 1937.
The suit was heard by Burns, J., by whose order there was entered a final decree dismissing the bill as against the defendant Preferred Accident Insurance Company of New York and ordering the defendant Pamoukis to pay a specified sum of money to the plaintiff. The plaintiff appealed.
J. I. Robinson & C.
D. Sloan, for the plaintiff, submitted a brief.
E. H. Wright, for the defendant Preferred Accident Insurance Company of New York.
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 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, Section 113 and G. L. (Ter. Ed.) c. 214, Section 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. Phillips v. Stone, 297 Mass. 341 . The defence upon which the company relies is that Pamoukis violated a provision of the policy requiring him to cooperate with the company in the defence 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 "cooperation 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, Section 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 . Star Brewing Co. v. Flynn, 237 Mass. 213, 216. Whitney v. Whitney, 299 Mass. 547 , 550. See Briggs v. Sanford, 219 Mass. 572; Seager v. Dauphinee, 284 Mass. 96 , 98. 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 . Gladstone v. Aronson, 277 Mass. 163 , 165. Goodyear
Tire & Rubber Co. v. Bagg, 292 Mass. 125 , 127. See Commissioner of Banks v. Cosmopolitan Trust Co. 249 Mass. 144 , 147; Berman v. Coakley, 257 Mass. 159 , 162; Romanausky v. Skutulas, 258 Mass. 190 , 192; Karas v. Karas, 288 Mass. 460, 462; Rosemont v. Equitable Life Assurance Society, 301 Mass. 139 , 141. 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. Goldston v. Randolph, 293 Mass. 253, 255.
In the case of Cohen v. Nagle, 190 Mass. 4 , at page 5, 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; Howe v. Howe, 199 Mass. 598 , 601; Smith v. Smith, 222 Mass. 102, 103; Taylor v. Jones, 242 Mass. 210 , 216; Berman v. Coakley, 257 Mass. 159, 161; and Edwards v. Cockburn, 264 Mass. 112 , 115. 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...
To continue reading
Request your trial