Boisvert v. Boisvert

• Decision Date: 03 June 1947
• Docket Number: No. 3657.,3657.
• Citation: 53 A.2d 515
• Parties: BOISVERT v. BOISVERT et al.
• Court: New Hampshire Supreme Court

53 A.2d 515

BOISVERT

v.BOISVERT et al.

No. 3657.

Supreme Court of New Hampshire.

June 3, 1947.

Reserved and Transferred from Superior Court, Hillsborough County; Blandin, Chief Judge.

Bill in equity by Beatrice Boisvert against Etienne Boisvert, administrator of the estate of the plaintiff's deceased husband, and an insurance company which had issued an automobile liability policy to deceased, to obtain a judgment for injuries allegedly resulting from the gross negligence of the deceased in the operation of an automobile. The court after hearing dismissed the bill subject to the plaintiff's exception, and all questions of law presented by the exception are reserved and transferred.

Exception overruled.

Bill in equity by the widow of the defendant administrator's intestate, seeking to establish damages suffered by her in an accident alleged to have resulted from the gross negligence of the decedent in the operation of an automobile at Sterling, Massachusetts, on February 17, 1945; and to obtain judgment for such damages, and an order for payment of the same by the defendant company, by reason of a policy of liability insurance issued by it to the decedent.

The policy was concededly in force on the date of the accident, and was executed and delivered in Connecticut. It obligates the company ‘to pay on behalf of the Insured, all sums which the Insured shall become obligated to pay by reason of the liability imposed upon him by law for damages * * * because of bodily injury * * * sustained by any person or persons caused by accident and arising out of the ownership, maintenance or use of the automobile’ involved in the accident.

One of the conditions of the policy provides that ‘No action shall lie against the Company * * * until the amount of the Insured's obligation to pay shall have been finally determined * * * by judgment against the Insured * * *.’

Another condition provides: ‘Such insurance as is afforded by this policy * * * shall comply with the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile. * * *’

The defendants appeared specially and filed pleas ‘in bar,’ alleging that the plaintiff has no cause of action. The court, after hearing, dismissed the bill subject to the plaintiff's exception. All questions of law presented by the exception are reserved and transferred by Blandin, C. J. Chretien & Craig and James A. Manning, all of Manchester, N. H., for plaintiff.

Laflamme & Nourie and P. E. Nourie, all of Manchester, N. H., for defendant.

DUNCAN, Justice.

Although the policy of insurance issued by the defendant company was issued in Connecticut, the accident occurred in Massachusetts, and the plaintiff's rights against her late husband and his estate are governed by the law of the latter jurisdiction. Miltimore v. Milford Motor Company, 89 N.H. 272, 197 A. 330; Gray v. Gray, 87 N.H. 82, 174 A. 508, 94 A.L.R. 1404. The law of Massachusetts is well settled, as the plaintiff concedes, that a wife cannot maintain an action of tort against her husband. Lubowitz v. Taines, 293 Mass. 39, 198 N.E. 320. The same incapacity precludes recovery against the husband's estate. Gahm v. Gahm, 243 Mass. 374, 137 N.E. 876. Because a married woman cannot maintain such an action in Massachusetts, she cannot maintain one here. Miltimore v. Milford Motor Company, supra. This is recognized by the plaintiff in her bill; but she asserts that she has an equitable right against the company by virtue of the Massachusetts statute, which provides: ‘The liability of any company under a motor vehicle liability policy * * * or under any other policy insuring against liability for loss or damage on account of bodily injury * * * shall become absolute whenever the loss or damage for which the insured is responsible occurs, and the satisfaction by the insured of a final judgment for such loss or damage shall not be a condition precedent to the right or duty of the company to make payment on account of said loss or damage.’ G.L.(Ter.Ed.) c. 175, § 12. The General Statutes of Connecticut contain provisions which closely parallel those of the Massachusetts statute relied upon by the plaintiff. Section 4231, G.S. of Conn. (Rev. of 1930).

The policy of insurance involved in this case was issued in Connecticut and the liabilities arising out of the contract are governed by the law of that jurisdiction. Maryland Casualty Company v. Martin, 88 N.H. 346, 348, 189 A. 162. See Levy v. Daniels' U-Drive Auto Renting Company, 108 Conn. 333, 143 A. 163, 61 A.L.R. 846; Searls v. Standard Acc. Ins. Company, 316 Mass. 606, 56 N.E.2d 127. To the extent that the Massachusetts statute may be said to form a part of the contract of insurance or operate upon the plaintiff's cause of action it will be enforced here. See Crippen v. Laighton, 69 N.H. 540, 549, 550, 44 A. 538, 46 L.R.A. 467, 76 Am.St.Rep. 192; Lord v. Roberts, 84 N.H. 517, 519, 153 A. 1; Robinson v. Dixon, 91 N.H. 29, 30, 13 A.2d 163. It is not opposed to our public policy. See R.L. c. 122, § 16; Phoenix Indemnity Co. v. Conwell, 94 N.H. 146, 47 A.2d 827. And under our practice, equity is the appropriate forum for determination of the plaintiff's rights under the contract. Bosse v. Wolverine Ins. Company, 88 N.H. 98, 184 A. 359; Capelle v. United States Fidelity & Guaranty Company, 80 N.H. 481, 120 A. 556.

The Massachusetts statute, insofar as it can affect substantive rights under the policy of insurance issued in Connecticut, must depend for its force upon the agreement of the parties. See Levy v. Daniels' U-Drive Auto Renting Company, supra; American Fidelity & Casualty Co. v. Sterling Express Company, 91 N.H. 466, 22 A.2d 327, 137 A.L.R. 651; 44 C.J.S., Insurance, § 50, page 500, § 54, 516; Anno., 137 A.L.R. 656. The plaintiff asserts that it is applicable by reason of the condition of the policy which provides that the insurance afforded ‘shall comply with the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable.’ Disregarding the fact that the statute is not an integral part of the Massachusetts Compulsory Insurance Act, and that that act requires only that policies ‘issued * * * in the commonwealth’ shall be subject to G.L. (Ter.Ed.) c. 175 §§ 112 and 113 (G.L. (Ter.Ed) c. 175 § 113A), and overlooking doubts which arise as to whether the policy provisions were intended to subject the company to the requirements of these particular sections (cf. Lumbermens Mutual Casualty Co. v. Blake, 94 N.H. 141, 145, 47 A.2d 874; Sheldon v. Bennett, 282 Mass. 240, 184 N.E. 722), it appears that neither the statute nor its interpretation by the Massachusetts courts sustains the plaintiff's claim to a right to recover of the company in the absence of any judgment in her favor against the insured. Some indication of the nature of the right conferred by section 112 is contained in the provisions of section 113, defining the remedy. Under this section ‘upon the recovery of a final judgment * * * for any loss or damage specified’ in section 112, a ‘judgment creditor shall be entitled to have the insurance money applied to the satisfaction of the judgment’ by suit in equity.

The statute was first construed in Lorando v. Gethro, 228 Mass., 181, 117 N.E. 185, 188, 1 A.L.R. 1374, where the Court said: ‘The instant statute has for its chief object simply a regulation as to the form of a policy of insurance. It prohibits in substance, the insertion in any contract * * * of a condition that the insured must actually pay the loss before liability attaches to the insurer. With that single exception and its accompanying incidents * * * the scope and validity of such contracts are left as before, unaffected by this statute. A further important feature of the statute is to give to the person injured * * * a certain beneficial interest in the proceeds of that policy. It does not enlarge or modify in any respect the substantial liability created by the contract of insurance.’ The provision...