Blair v. Travelers Ins. Co.
| Decision Date | 02 July 1935 |
| Citation | 291 Mass. 432,197 N.E. 60 |
| Parties | BLAIR v. TRAVELERS INS. CO. et al. GRAVEY v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Two actions of tort by Henrietta L. Blair and Timothy J. Garvey administrator of the estate of Daniel Garvey, against the Travelers Insurance Company and another. From judgments for plaintiffs, named defendant appeals.
Reversed and remanded.
See also, 192 N.E. 467.
Appeal from Superior Court Worcester County; Goldberg, Judge.
D. F. Gay, of Worcester, for appellant Travelers Ins. Co.
E. A. Ryan, of Worcester, for appellees.
One Toren owned an automobile covered by a motor vehicle liability insurance policy issued by the defendant. He lent the automobile at Northboro on Saturday, October 24, 1931, to one Dion, for the purpose of enabling Dion to take it that night to Dion's house in Webster and on Sunday morning to Worcester to show to a prospective buyer. Dion agreed to bring back the automobile or the money on Monday morning. Nothing was said as to using the automobile for any other purpose. Dion had no license to operate an automobile.
Dion failed to sell the automobile, and had it in his possession in Webster on Sunday evening, when he went for a pleasure ride in it with one Daniel Garvey, the plaintiff Henrietta L. Blair, one Perreault and a Miss Duquette. While the automobile was being operated near the town of Southbridge by Perreault, who had no license to operate, with Dion sitting beside him, and while both were trying to control the automobile, it overturned, killing Daniel Garvey and injuring the plaintiff Blair. In actions of tort against Dion, the plaintiff Blair recovered judgment for $8,500 and costs for personal injuries, and the plaintiff Timothy J. Garvey, administrator, recovered judgment for $8,755 and costs for the death of his intestate, Daniel Garvey, under G. L. (Ter. Ed.) c. 229, § 5.
Section A of the insurance policy, which was intended to comply with the Massachusetts compulsory motor vehicle liability security law, limited the obligation of the defendant to $5,000 for liability for injury to or death of one person, and $10,000 for liability for injury to or death of more than one person, resulting from any one accident. By Section A the defendant undertook to pay on behalf of the ‘ Assured’ all sums within those limits which the ‘ Assured’ shall become liable to pay by reason of liability for personal injury or death resulting from the ownership, operation, maintenance, control or use of the insured automobile upon the ways of the Commonwealth of Massachusetts. As to Section A it was provided that the word ‘ Assured’ shall include not only the named Assured, Toren, ‘ but also any other person responsible for the operation of the named Assured's motor vehicle or trailer described herein with his express or implied consent.’ This language conformed to the requirements of G. L. (Ter. Ed.) c. 90, § 34A.
In suits in equity under G. L. (Ter. Ed.) c. 214, § 3(10), to apply the insurance towards the satisfaction of the judgments, the defendant contended that at the time of the accident Toren's automobile was being operated under such circumstances that Dion was not an ‘ Assured’ under the provision quoted, which is often called an ‘ omnibus coverage’ or ‘ additional assured’ provision. In O'Roak v. Lloyds Casualty Co., 285 Mass. 532, 189 N.E. 571,Guzenfield v. Liberty Mutual Ins. Co., 286 Mass. 133, 190 N.E. 23, and Moschella v. Kilderry (Mass.) 194 N.E. 728, it was settled that a statutory policy of insurance such as this must be construed broadly to effectuate the legislative purpose that automobiles actually permitted to be on the public ways be covered by indemnity insurance for the benefit of persons who may suffer personal injury through their operation; that the bailee of an automobile becomes ‘ responsible’ to the owner for its operation; and that the required ‘ consent’ is consent to the bailment, not consent to the particular use which is being made of the automobile at the moment of the accident. Accordingly, we held in the present cases that each plaintiff had a right to collect from the defendant insurer the maximum statutory amount of insurance, $5,000.
We were not advised, at the time of rescript, whether or not the policy covered a broader risk or a larger sum than was required by the Massachusetts compulsory motor vehicle liability security law. For that reason, in reversing the decrees dismissing the bills, we ordered decrees for each of the plaintiffs in the amount of $5,000 to which they were certainly entitled under the policy required by that law, and remanded the cases to the Superior Court to determine such further amounts, if any, as may be found due the plaintiffs under the form of insurance policy issued by the defendant to Toren. Blair v. Travelers' Ins. Co., 288 Mass. 285, 192 N.E. 467. See, also, Moschella v. Kilderry (Mass.) 194 N.E. 728. In accordance with that decision, the defendant paid $5,000 to each of the plaintiffs.
Whether the defendant is liable for more, remains to be determined. The Superior Court has now found the facts heretofore wanting. Section B of the policy insured ‘ the Assured’ to the extent of $10,000 for liability for injury to one person and $20,000 for liability for injury to more than one person, resulting from any one accident, caused by the ownership, operation, maintenance, control or use within the United States or Canada of the automobile in question. As to Section B it was provided that the word ‘ Assured’ shall include not only the named Assured, Toren, ‘ but any other person or organization while legally using any such motor vehicle or trailer, including also any other person or organization legally responsible for the use thereof, provided that such use is with the permission of the named Assured.’ So far as Section B affords a broader coverage than Section A, as to territory, amount, circumstances of operation, or other particulars, the obligation of the defendant is measured exclusively by the words of Section B. Cormier v. Hudson, 284 Mass. 231, 233, 234, 187 N.E. 625.
Section B has a different background. ground. No statute requires Section B. Until St. 1925, c. 346, the owner of an automobile was free to insure himself against liability resulting from its operation, or not. The insurance provided by Section B of the policy, beyond that required by Section A, still remains voluntary and optional. A person injured by the operation of the automobile cannot complain of the absence of such insurance, though he acquires statutory rights in it, when it exists, from the moment of the injury. G. L. (Ter. Ed.) c. 175, §§ 112, 113; c. 214, § 3(10). But his rights do not rise higher than those of the assured. If some defense exists, which would defeat an action on the policy by the assured, the judgment creditor cannot reach the insurance, for there is no ‘ obligation’ to be reached under the statute. Sontag v. Galer, 279 Mass. 309, 312, 181 N.E. 182; Goldberg v. Preferred Accident Ins. Co. of New York, 279 Mass. 393, 396, 181 N.E. 235; Souza v. Car & General Assurance Corp., Ltd., 281 Mass. 117, 183 N.E. 140; Sheldon v. Bennett, 282 Mass. 240, 184 N.E. 722; Sleeper v. Massachusetts Bonding & Ins. Co., 283 Mass. 511, 186 N.E. 778; Goff v. Benson, 286 Mass. 119, 190 N.E. 16; Wainer v. Weiner (Mass.) 192 N.E. 497; Masterson v. American Employers' Ins. Co. of Boston (Mass.) 193 N.E. 59.
Section B does not provide, as does Section A, that the word ‘ Assured’ shall include any person ‘ responsible for’ the ‘ operation’ of the automobile with the ‘ express or implied consent’ of the owner. It provides, instead, that the word ‘ Assured’ shall include any person ‘ while legally using’ the automobile, provided ‘ such use’ is with the permission of the owner. Was Dion an ‘ Assured’ within that definition? Toren had given no permission for a pleasure ride on Sunday evening, although he had not expressly forbidden it. Such a ride was not within the express or implied purposes of the bailment, nor incidental to them, but amounted to a conversion of the automobile. Lucas v. Trumbull, 15 Gray, 306; Hall v. Corcoran, 107 Mass. 251, 9 Am.Rep. 30; Perham v. Coney, 117 Mass. 102.
Not much help can be found in the apparently conflicting cases in other jurisdictions, for the words of different policies vary greatly. The words ‘ while legally using’ mean using with right, not using in a lawful manner. Zurich General Accident & Liability Ins. Co., Ltd., v. Thompson (C C. A.) 49 F.(2d) 860, 861, 862. They refer to the time of the accident, not the time of the bailment. Johnson v. American Automobile Ins. Co., 131 Me. 288, 293, 161 A. 496. It is the ‘ use’ at the time of the accident that must have been with the ‘ permission’ of the owner. In our opinion Dion was not an ‘ Assured’ under Section B, and the defendant was erroneously...
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