Brown v. Great American Indem. Co.

• Decision Date: 03 July 1937
• Parties: BROWN v. GREAT AMERICAN INDEMNITY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 101

9 N.E.2d 547

BROWN

v.GREAT AMERICAN INDEMNITY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

July 3, 1937.

Exceptions from Superior Court, Suffolk County; Brogna, Judge.

Action of contract by James B. Brown against the Great American Indemnity Company. Finding for the plaintiff for $6,406.68, and both parties bring exceptions.

Judgment in accordance with opinion.R. Spring and F. S. Moulton, both of Boston, for plaintiff.

S. P. Sears, of Boston, and E. R. Langenbach, of Brookline, for defendant.

LUMMUS, Justice.

On January 10, 1930, while holding a Massachusetts compulsory motor vehicle liability policy (G.L.[Ter.Ed.] c. 90 § 34A; O'Roak v. Lloyds Casualty Co., 285 Mass. 532, 535, 189 N.E. 571;MacBey v. Hartford Accident & Indemnity Co. [Mass.] 197 N.E. 516, 106 A.L.R. 1248) in the sum of $5,000, issued by the defendant, the plaintiff struck and injured one John I. Byron while operating the motor vehicle covered by the policy upon a highway in Massachusetts.

On January 19, 1931, more than one year after the injury and consequently after action in the courts of Massachusetts had become barred by the statute of limitations (St.1925, c. 346, § 10, now contained in G.L.[Ter.Ed.] c. 260, § 4; Melanson v. Smith, 282 Mass. 85, 184 N.E. 382), but before the two years allowed for action by the Rhode Island statute of limitations had run (Byron v. Great American Indemnity Co., 54 R.I. 405, 407, 173 A. 546), Byron brought an action against the plaintiff in the Superior Court of Rhode Island, in which he recovered judgment for $9,000 damages on January 21, 1933, the judgment being entered as of October 30, 1931, the date of the verdict. See Byron v. Brown, 53 R.I. 91, 163 A. 881.

In March, 1933, Byron brought in the Superior Court of Rhode Island a bill in equity against the present plaintiff and the defendant, to reach the proceeds of the insurance policy and apply them towards the satisfaction of the judgment. In the court a final decree was entered, ordering the defendant insurer to pay Byron the full amount of the policy, $5,000, with interest and costs. On appeal the Supreme Court of Rhode Island, on July 3, 1934, reversed the decree and ordered the court below to dismiss the bill. Teh court said: ‘The parties did not intend that the insurer would be liable for any judgment that might be obtained against the insured in an action commenced against him more than one year after the cause of action accrued. * * * It is unreasonable to suppose it [the General Court of Massachusetts] intended that the liability of the insurer would depend upon the statute of limitations of another state.’ Byron v. Great American Indemnity Co., 54 R.I. 405, 409, 173 A. 546, 548.

The plaintiff, on December 26, 1934, brought this action of contract in the Superior Court of Massachusetts to recover the amount of the policy, $5,000, plus interest from October 30, 1931, the date of the Rhode Island judgment, and the costs taxed against the plaintiff in that judgment. Interest upon the judgment runs from its date. Gen.Laws of R.I. (1923) c. 344, § 10 (section 5071). The insurer agreed to pay interest and costs, and these are not within the limit of $5,000 in the policy. Blair v. Travelers Ins. Co. (Mass.) 197 N.E. 60. It is immaterial that the plaintiff has not satisfied the judgment. G.L.(Ter.Ed.) c. 175, § 112; Lorando v. Gethro, 228 Mass. 181, 186, 189, 117 N.E. 185, 1 A.L.R. 1374;Kana v. Fishman, 276 Mass. 206, 210, 176 N.E. 922;Cormier v. Hudson, 284 Mass. 231, 237 et seq., 187 N.E. 625. There was a finding for the plaintiff in the court below.

The limitation of time for action has been held in some instances to restrict the right and not merely the remedy. Castaline v. Swardlick, 264 Mass. 481, 483, 163 N.E. 62;Bickford v. Furber, 271 Mass. 94, 97, 170 N.E. 796;Melnik v. Perwak (Mass.) 4 N.E.(2d) 329;Davis v. Mills, 194 U.S. 451, 24 S.Ct. 692, 48 L.Ed. 1067;William Danzer & Co., Inc., v. Gulf & Ship Island Railroad Co., 268 U.S. 633, 637, 45 S.Ct. 612, 613, 69 L.Ed. 1126. But an action for personal injuries covered by the Massachusetts compulsory motor vehicle liability insurance law is not one of them. In McLearn v. Hill, 276 Mass. 519, 522, 177 N.E. 617, 619, 77 A.L.R. 1039, it was said: ‘The one year period fixed by the statute is not of the essence of the cause of action and a limitation upon the right. The statute is a mere restriction upon the remedy. It must be pleaded. If not pleaded, it is deemed to be waived.’ In certain cases of infancy (DeCosta v. Ye Craftsman Studio, Inc., 278 Mass. 315, 180 N.E. 151) and of death of the insured [Gallo v. Foley (Mass.) 5 N.E.(2d) 425]; see also St.1937, c. 406, §§ 2, 3, actions covered by the law in question may be brought after the expiration of one year, because of provisions of the statute of limitations held to qualify the general provision allowing only one year. See, also, Ford v. Rogovin, 289 Mass. 549, 553, 194 N.E. 719.

Although the dominant purpose of the Massachusetts compulsory motor vehicle liability insurance law, as has often been said, is the protection of persons injured by the negligent operation of motor vehicles upon the ways of the Commonwealth [Wheeler v. O'Connell (Mass.) 9 N.E.(2d) 544], our statute shows no disregard of the interest of the insured to obtain the indemnity for which he pays. If judgment can be recovered against the insured in an action brought after the expiration of one year, the insurer should be held to indemnify him against the judgment unless the contrary plainly results from the statute or the policy. G.L.(Ter.Ed.) c. 90, § 34A, which the policy follows, provides broadly for indemnity ‘against loss by reason of the liability to pay damages to others for bodily injuries' arising out of motor vehicle accidents upon the ways of the Commonwealth.

The action of tort in the present case was maintainable in any jurisdiction in which the insured could be found and served with process. Cormo v. Boston Bridge Works, 205 Mass. 366, 368, 91 N.E. 313;Hanlon v. Frederick Leyland & Co. Ltd., 223 Mass. 438, 111 N.E. 907, L.R.A.1971A,...