Byron v. Great Am. Indem. Co.

• Decision Date: 03 July 1934
• Docket Number: No. 1193.,1193.
• Citation: 173 A. 546
• Parties: BYRON v. GREAT AMERICAN INDEMNITY CO. et al.
• Court: Rhode Island Supreme Court

173 A. 546

BYRON

v. GREAT AMERICAN INDEMNITY CO. et al.

No. 1193.

Supreme Court of Rhode Island.

July 3, 1934.

Appeal from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.

Bill by John I. Byron against the Great American Indemnity Company and others. Prom a decree for complainant, named respondent appeals.

Reversed and remanded with directions to dismiss the bill.

Ralph M. Greenlaw and Edwin J. Tetlow, both of Providence, for complainant.

Clifford A. Kingsley, of Providence, Robert Gallagher, of Boston, Mass., and Francis V. Reynolds, of Providence, for respondent company.

SWEENEY, Justice.

This bill is brought to enforce liability under a policy of motor vehicle liability insurance. After trial in the superior court on bill, answer, and proof, a final decree was entered ordering the respondent company to pay complainant $5,000 with interest and costs. The company appealed from this decree on the grounds that it is contrary to the law and the evidence.

The facts are undisputed. Complainant is a resident of the city of Pawtucket and the second respondent, James Brown, is a resident of Attleboro, Mass. On January 10, 1930, complainant was seriously injured in Attleboro by Brown's negligent operation of an automobile. Complainant commenced an action at law against Brown in the superior court in this state. After trial, verdict was rendered for the complainant. The verdict was sustained by this court and judgment for $9,000 was ordered entered. 53 R. I. 91, 163 A. 881. Complainant then brought this bill to compel the respondent company—hereinafter referred to as respondent—to pay $5,000 on account of this judgment because it had insured Brown against motor accident liability.

Respondent filed an answer in which it alleged that it was liable under its policy issued to Brown only in case the injured person brought his action against Brown within one year from the date of such injury. The trial court overruled this defense. This adverse ruling is the principal reason alleged for respondent's appeal. It raises the question: Is an insurer, who issues a policy under the Massachusetts Compulsory Motor Vehicle Liability Insurance Act, liable thereunder to one injured in Massachusetts by the assured who brings an action against him later than one year after the date of the injury?

The pertinent part of the statute of limitations of Massachusetts reads: "Actions of tort for bodily injuries * * * the payment of judgments in which is required to be secured by chapter ninety (relates to motor vehicles) and * * * suits by judgment creditors in such actions of tort under section one hundred and thirteen of chapter one hundred and seventy-five * * * shall be commenced only within one year next after the cause of action accrues." Section 4, c. 260, G. L Mass. 1932 (Ter. Ed.).

The statute of limitations of this state provides: "Actions for injuries to the person shall be commenced and sued within two years next after the cause of action shall accrue, and not after." Section 4876, Gen. Laws 1923 (chapter 334, § 1).

Complainant was injured by Brown on January 10, 1930. His right of action accrued at that time. McLearn v. Hill, 276 Mass. 519, 177 N. E. 617, 77 A. L. R. 1039; Kenyon v. United Electric Railways Co., 51 R. I. 90, 151 A. 5. Under the statutes of limitation above mentioned, complainant could commence an action against Brown in Massachusetts before January 11, 1931, and not thereafter, or he could commence such action in this state any time before January 11, 1932. Complainant did commence his action against Brown in this state by writ dated January 19, 1931. The writ was handed to the sheriff for service on the same day and was served upon Brown on January 22, 1931.

Complainant's right to commence and maintain his common-law right of action against Brown in this state was unquestioned. Such an action is controlled by the statute of limitations of the state where the action is commenced, and not by the statute of the state where the cause of action accrued. Staples v. Waite, 30 R. I. 516, 76 A. 353, 30 L. R. A. (N. S.) 895; Crocker v. Arey, 3 R. I. 178.

Respondent admits this proposition but contends that its liability under its policy is limited to paying a judgment in an action commenced against Brown only within one year after the cause of action accrued, as fixed by the Massachusetts statute of limitations. It claims that this statute is by reference incorporated in the policy and is a limitation upon the right of complainant to sue it as insurer of Brown. This contention requires a construction of the policy and the laws of the state requiring compulsory motor vehicle insurance.

Respondent issued to Brown an insurance policy containing an insuring clause entitled "Statutory Coverage" in which it agreed: "To pay all sums, in accordance with the provisions of chapter 346 of the Acts of 1925 of the Commonwealth of Massachusetts and all acts amendatory thereof and supplementary thereto, which the assured shall become liable to pay as damages imposed by law for bodily injuries * * * occurring upon the ways of * * * Massachusetts." The chapter appears in Re Opinion of the Justices to the Senate, 251 Mass. 569, 147 N. E. 681.

Respondent's agreement was "to pay all sums in accordance with the provisions of chapter 346," which the assured might become liable to pay as damages imposed by law for bodily injuries. Section 10 of said chapter provides, among other things, that actions of tort for bodily injuries or for death, the payment of judgments in which is required to be secured by chapter 90, shall be commenced only within one year next after the cause of action accrues.

Construing this section in Bickford v. Furber, 271 Mass. 94, 170 N. E. 796, 798, the court held that the limitation within which an action must be commenced to enforce liability in connection with compulsory security for death caused by motor vehicles reduced the time from two years, fixed in a statute giving an action for causing death by negligence, to one year. The court said: "It is not to be supposed that the Legislature, in connection with requiring security for the payment of judgments for deaths caused by motor vehicles by St. 1925, c. 346, intended to make the time within which such actions must be brought less definite than in the case of actions for deaths generally." This case was cited with approval in Wescott v. Henshaw Motor Co., 275 Mass. 82, 175 N. E. 153.

Complainant had no right of action at common law against Brown's insurer. His right...