Blair v. Travelers' Ins. Co.

• Decision Date: 30 October 1934
• Citation: 288 Mass. 285,192 N.E. 467
• Parties: BLAIR v. TRAVELERS' INS. CO. et al. GARVEY v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

288 Mass. 285

192 N.E. 467

BLAIR

v.TRAVELERS' INS. CO. et al.

GARVEY

v.SAME.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 30, 1934.

Appeal from Superior Court, Worcester County; D. F. Dillon, Judge.

Two suits in equity by Henrietta L. Blair and by Timothy J. Garvey, as administrator of the estate of Daniel Garvey, against the Travelers' Insurance Company and another. From final decrees dismissing the suits, plaintiffs appeal.

Reversed, and decrees directed to be entered for plaintiffs.E. A. Ryan, of Worcester, for appellants.

D. F. Gay, of Worcester, for appellees.

PIERCE, Justice.

These two suits in equity are brought under G. L. (Ter. Ed.) c. 214, § 3, cl. 10, to reach and apply in satisfaction of judgments obtained in the superior court the alleged obligation of the defendant insurance company, under a motor vehicle policy. The policy was issued to one Benzion Toren, owner of an automobile alleged to have been used on the public highway by one Bernard Dion, or by one Bernard Perreault under the direct supervision of Bernard Dion, with the express or implied consent of said Benzion Toren. The defendant in its answer admitted its right to issue policies of insurance under the so-called compulsory insurance law. St. 1925, c. 346. It further admitted that on August 27, 1931, it entered into a contract of insurance with said Benzion Toren under the compulsory motor vehicle insurance law, as prescribed by St. 1926, c. 368, § 2; St. 1928, c. 381, § 4; G. L. (Ter. Ed.) c. 90, § 34A. It is not denied that the sedan owned by said Toren, bearing registration plates No. 357915, covered by a certificate of insurance issued by the defendant, on October 25, 1931, was being operated or used by one Bernard Dion or Bernard Perreault on a public highway known as Southbridge-Dudley Road.

It appears in the testimony reported under G. L. (Ter. Ed.) c. 214, § 24, and under Rule 76 of the superior court (1932) that said Dion and Perreault operated the automobile on the road and date in question in a manner which caused the death of one Daniel Garvey and severe, painful, physical injuries to the plaintiff Henrietta L. Blair. It also appears in said undisputed testimony that the administrator of Garvey and the plaintiff Blair brought individual actions of tort in the superior court and that each of them recovered judgment against the said Bernard Dion and the said Bernard Perreault for substantial sums of money and the costs of their respective actions, and that the judgments remain unsatisfied.

G. L. (Ter. Ed.) c. 214, § 3, cl. 10, provides for suits to reach and apply the obligation of an insurance company to a judgment debt under a motor vehicle liability policy, as defined in G. L. (Ter. Ed.) c. 90, § 34A, which has not been satisfied within thirty days after the date it was rendered. The material portion of said insurance act is as follows: ‘The following words, as used in sections thirty-four A to thirty-four J, inclusive, shall have the following meanings: * * * ‘Motor vehicle liability policy,’ a policy of liability insurance which provides indemnity for or protection to the insured and any person responsible for the operation of the insured's motor vehicle with his express or implied consent against loss by reason of the liability to pay damages to others for bodily injuries, including death at any time resulting therefrom, * * * sustained during the term of said policy by any person other than employees of the insured or of such other person responsible as aforesaid who are entitled to payments or benefits under the provisions of chapter one hundred and fifty-two, and arising out of the ownership, operation, maintenance, control or use upon the ways of the commonwealth of such motor vehicle, to the amount or limit of at least five thousand dollars on account of injury to or death of any one person, and, subject to such limits as respects injury to or death of one person, of at least ten thousand dollars on account of any one accident resulting in injury to or death of more than one person. * * *'

The defendant contends that the motor vehicle was not being operated by Dion at the time of the accident, and that if it was operated or used by him, such operation or use was without the express or implied consent of the insured. This position of the defendant presents the only live issue in the cases. The trial judge filed the following ‘Memoranda and Order for Decree’: ‘After hearing, the Court finds that on the twenty-fifth day of October 1931 Bernard Dion was operating a Dodge Sedan owned by Benzion Toren, and bearing registration plates No. 357915, but that the operation, management and control of said automobile by said Bernard Dion, or by his companion, Bernard Perreault, at the time of the accident was without either the express or implied consent of the owner, Benzion Toren, and, therefore, the prayers of the plaintiff contained in the within bill are denied. It is hereby ordered that a decree be entered dismissing the within bill.’ Thereafter final decrees were entered dismissing the bills. The cases are before this court on the appeals of the plaintiffs from the final decrees.¹

The facts pertinent to the issue whether Bernard Dion had permission to use the motor vehicle at the time of the accident are as follows: For six weeks previous to the day of the accident Bernard Dion worked for Benzion Toren on his farm and without a license operated a truck used by Toren for the wholesale...