Caccavo v. Kearney

Decision Date01 June 1934
Citation190 N.E. 817,286 Mass. 480
PartiesCACCAVO et al. v. KEARNEY et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Suffolk County; Gray, Judge.

Suit by Barbara Caccavo, administratrix, and others, against Mildred E. Kearney and others. From a decree for plaintiffs, the defendant Employers' Liability Assurance Corporation, Limited, appeals.

Affirmed.

A. B. Goodspeed and R. E. Kempton, both of Boston, for plaintiffs.

R. B. Coulter, of Boston, for defendants.

RUGG, Chief Justice.

The plaintiff seeks by this suit to reach and apply the avails of an insurance policy issued by the defendant, the Employers' Liability Assurance Corporation, Ltd. (hereafter called the insurer), to the satisfaction of judgments in actions at law obtained by the plaintiff against the other two defendants for negligently causing the death of the plaintiff's intestate. In March, 1930, the plaintiff's intestate, upon a public way within the Commonwealth, received fatal injuries as the result of the operation of a motor vehicle registered as hereafter described in the name of the defendant Eleanor M. Kearney and operated with her knowledge and consent by the defendant Mildred E. Kearney. At the trial of the actions, in which judgments against the Kearneys were recovered, the jury were instructed that the motor vehicle in question could be found to be a trespasser upon the highway and that the defendant Eleanor M. Kearney could be found legally responsible for the operation of the motor vehicle by the defendant Mildred E. Kearney Under St. 1928, c. 317, § 1. The insurer refused to pay the judgments. The case was submitted upon an agreed statement of facts. A decree was entered in favor of the plaintiff. The insurer appealed. Further material facts are that the defendant Eleanor M. Kearney applied to the insurer for a motor vehicle liability policy in accordance with St. 1925, c. 346, as amended, as to compulsory motor vehicle insurance and that such policy was issued and was not canceled prior to the accident here in question. The application of the defendant Eleanor M. Kearney for registration of the motor vehicle in accordance with G. L. c. 90, § 2, as amended, was duly received by the department of public works of the Commonwealth and was accompanied by a certificate, executed by an agent of the insurer, stating that the insurer had issued to the applicant a motor vehicle liability policy of the form and nature required by St. 1925, c. 346, as amended, such policy to be effective on January 1, 1930, and to expire on December 31, 1930. The application stated that the applicant was owner of the motor vehicle in question. That motor vehicle was required to be insured under St. 1925, c. 346, as amended. Upon that application a certificate of registration for the motor vehicle was issued to the defendant Eleanor M. Kearney on or about January 1, 1930, which had not been canceled or annulled at the time of the fatal accident to the plaintiff's intestate. The motor vehicle described in the declarations attached to the policy and certificate and thus accurately identified is the motor vehicle involved in that accident. The plaintiff's intestate was not an employee of either of the individual defendants and was not entitled to benefit under the Workmen's Compensation Act (G. L. [Ter. Ed.] c. 152). The defendant Eleanor M. Kearney at no time had a legal or equitable title to the motor vehicle. She never drove it. She had no license to operate it. It was purchased by her brother, Frank Kearney, who was husband of the defendant Mildred E. Kearney. When the fact as to ownership was discovered by the insurer, it immediately notified the other two defendants that it would not be responsible for any verdict rendered against either of them and would cecline to defend actions against them, and that all its conduct in the premises would be under full reservation of all its rights. The defence of those actions against the individual defendants was assumed by personal counsel for the individual defendants.

Pertinent statutory provisions are these: ‘No motor vehicle * * * shall be registered * * * unless the application therefor is accompanied by a certificate as defined’ in section 34A; that is to say, a certificate that the motor vehicle is insured under the compulsory insurance law. St. 1925, c. 346, § 1, as amended (G. L. [Ter. Ed.] c. 90, § 1A).

‘Any company issuing a certificate through a duly authorized officer or agent, which is filed with the registrar in connection with the registration of a motor vehicle, shall be estopped to deny the issue or execution of a motor vehicle liability policy * * * as set forth therein.’ St. 1925, c. 346, § 2, as amended (G. L. [Ter. Ed.] c. 90, § 34B).

‘* * * no statement made by the insured * * * either in securing the policy or in securing registration of the motor vehicle * * * covered thereby, no violation of the terms of the policy and no act or default of the insured, either prior or subsequent to the issue of the policy, shall operate to defeat or avoid the policy so as to bar recovery within the limit provided in the policy by a judgment creditor’ proceeding under G. L. c. 175, § 113, and chapter 214, § 3 (10). St. 1925, c. 346, § 4, as amended (G. L. [Ter. Ed.] c. 175, § 113A [5]).

The pertinent provisions of the policy issued by the insurer to Eleanor M. Kearney are these:

‘The unqualified term ‘Assured’ wherever used in Insuring Clause I of the Policy or in any Agreements or Conditions to which Insuring Clause I is subject shall include in each instance not only the named Assured but also any other person, firm or corporation responsible for the operation of the Assured's motor vehicle with the express or implied consent of the named Assured insured hereunder.'

‘* * * this Policy covers * * * bodily injuries, including death at any time resulting therefrom accidentally sustained by any person or persons, other than employees engaged in operating or caring for the motor vehicles * * * covered, as the result of the ownership, maintenance, operation, or use of any of the motor vehicles * * * enumerated and described in Item 7 of the Declarations.’

‘No statement made by the Assured or on his behalf either in securing this Policy or in securing the registration of the motor vehicle * * * covered thereby and no violation of the terms of this Policy and no act or default of the Assured, either prior or subsequent to the issuance of this Policy, shall operate to defeat or avoid this Policy so as to bar recovery within the limit provided in this Policy by a judgment creditor proceeding under the provisions of Section 113 of Chapter 175 and Clause 10 of Section 3 of Chapter 214 of the General Laws.’

The words of the statutes and of the policy issued pursuantthereto must be construed together and interpreted in the light of the dominant design of the General Court in undertaking to deal with the subject of motor vehicle insurance....

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30 cases
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