Cain v. American Policyholders Ins. Co.

Decision Date08 January 1936
Citation120 Conn. 645,183 A. 403
CourtConnecticut Supreme Court

Appeal from Superior Court, Hartford County; Earnest A. Simpson Judge.

Action by Frederick Cain against the American Policyholders Insurance Company, to recover under a liability policy issued by defendant, the amount of judgment obtained by plaintiff against another. Judgment for plaintiff, and defendant appeals.

Error and cause remanded, with direction.

Construction of clause in automobile liability policy held determinable by law of Massachusetts where insured and insurer were Massachusetts residents and policy was issued and accepted in Massachusetts. M.G.L.A. c. 152, § 1 et seq.

Joseph F. Berry and Olcott D. Smith, both of Hartford, for appellant.

M. J Blumenfeld, of Hartford, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

HINMAN, Judge.

The plaintiff, a resident of Massachusetts, held a policy issued by the defendant insuring against loss by reason of liability arising out of the operation of an automobile owned by the plaintiff, which policy was in force on July 18, 1934. At about 3 o'clock in the morning of that day the plaintiff, while driving through New London on a business trip from Taunton, Mass., to New York City, picked up a man named Snellman, who asked for a ride to Waterford, but, before they reached that place, on learning that the plaintiff was going to New York, said that he would continue on with him to the Bronx. Plaintiff spoke of being sleepy, whereupon Snellman informed him that he could operate the car, and asked to be allowed to do so. The plaintiff at first declined the offer, but later allowed Snellman to get behind the wheel and, after cautioning him to drive carefully and slowly and watching him drive for a few minutes, went to sleep. While Snellman was operating the car through Fairfield, and while the plaintiff was asleep, he negligently caused it to collide with a truck, and as a result the plaintiff was severely injured. Subsequently, the plaintiff instituted an action against Snellman in the superior court in New London county to recover for his injuries, and obtained judgment by default for $4,500 damages and costs. The defendant refused to pay this judgment, and the plaintiff brought the present action. Upon the facts found, including the foregoing, the trial court concluded that liability of Snellman to the plaintiff was included in and covered by the policy, and rendered judgment, accordingly, in favor of the plaintiff.

It cannot be accurately said, as the appellant requests to have added to the finding, that Snellman, in operating the car, was " at all times under the direction and control of the plaintiff." The fact that the latter is found to have been asleep negatives such actual control of the management of the car as that finding would import. Reetz v. Mansfield, 119 Conn. 563, 569, 178 A. 53. Upon the facts found, however, Snellman, driving with the express consent of the plaintiff, and for his purposes, clearly was his agent, so that the plaintiff would have been liable to third parties for damages resulting from negligence of Snellman. Brown v. Wright, 100 Conn. 193, 199, 123 A. 7. Under the circumstances, also, Snellman was liable to the plaintiff for damages for the injuries the latter sustained. Donohue v. Jette, 106 Conn. 231, 137 A. 724. The issue in dispute is whether the liability insurance policy carried by the plaintiff permits him to recover under it, from the insurer, the amount of the judgment for such damages which he has obtained against Snellman. The outcome depends upon the construction to be accorded to the controlling provisions of the policy.

The so-called " Insuring Clause" of the policy issued by the defendant to the plaintiff provides that the insurer, in consideration of the premium, " agrees to indemnify" the named insured (the plaintiff) " and any person responsible for the operation of the named insured's motor vehicle or trailer described herein with his express or implied consent against loss by reason of the liability to pay damages to others for bodily injuries *** sustained during the term of this policy by any person other than employees of the insured or of such other person responsible as aforesaid who are entitled to payments or benefits under [the Workmen's Compensation Statutes, General Laws of Massachusetts, chapter 152] and arising out of the ownership, operation, maintenance, control or use upon the ways of [Massachusetts] of such motor vehicle or trailer." As the plaintiff is a resident of Massachusetts and the defendant insurer a Massachusetts corporation and the policy was issued and accepted in that state, the construction and effect of that clause are to be determined by the law of Massachusetts. New York Life Ins. Co. v. Rigas, 117 Conn. 437, 440, 168 A. 22, 91 A. L. R. 1122; Mullen v. Reed, 64 Conn. 240, 247, 29 A. 478, 24 L. R. A. 664, 42 Am. St. Rep. 174; 2 Cooley, Briefs on Insurance (2d Ed.) p. 1026.

These provisions therein clearly were intended to, and do literally, conform to the requirement of the Massachusetts Compulsory Motor Vehicle Liability Insurance Law (General Laws [Ter. Ed.] vol. 1, c. 90, § 34A et seq. and amendments) that the policy provide " indemnity for or protection to the insured and any person responsible for the operation of the insured's motor vehicle with his express or implied consent against loss by reason of the liability to pay damages to others for bodily injuries." G. L. (Ter. Ed.) Mass. c. 90, § 34A. This statutory provision has been construed by the Supreme Judicial Court of Massachusetts, since the instant case was decided in the superior court, in MacBey v. Hartford Accident & Indemnity Co., 197 N.E. 516, 517. The facts were similar in that the plaintiff, owner of the motor vehicle covered by the policy, while riding therein was injured through the negligence of a person who was driving with her consent, obtained a default judgment against him, and then sought to have recourse to the insurance policy for satisfaction of the judgment. In that case the policy was not introduced in evidence, but it was assumed that, as in the present case, it conformed to the mandate of the statute which we have quoted, and it was held that " the word ‘ others' describing persons to whom damages are to be paid, following the words 'insured’ and ‘ any person’ joined as describing those to be protected by the policy, plainly shows that inclusion of the named assured within the class of beneficiaries was not within the legislative intent. As matter of construction, the beneficiaries under the policy are denominated ‘ others' as contrasted with ‘ the insured’ and ‘ any person responsible for the operation of the insured's motor vehicle’ who may cause the damage. The language of the statute is free from ambiguity."

Although in that case it was the statute which was being directly construed instead of the conforming policy provision itself, and notwithstanding differences in the applicable rules of construction, this decision is manifestly at least very persuasive of the meaning to be accorded to the insuring clause of the policy now under consideration; clearly it was not only inserted to comply with the statute but also conforms to it with verbal exactitude. Application of the rules appropriate to the construction of insurance contracts develops no sound reason why this clause should or may be given a different meaning and effect than that attributed to the statute which it follows. In Boudreau v. Maryland Casualty Co., 287 Mass. 423, page 426, 192 N.E. 38, 39, also, although the action was on a judgment recovered by a person other than the insured, it was said that the insurer's liability under a policy issued pursuant to the Compulsory Motor Vehicle Law, is " to indemnify a person other than the owner for the consequences of negligent operation," citing O'Roak v. Lloyds Casualty Co., 285 Mass. 532, 189 N.E. 571, 573.

We find nothing in the " Extra-territorial Coverage *** Endorsement," which affects the question now before us. Under the original insuring clause, the availability of indemnity to others than the named insured was limited to persons " responsible for the operation of the [named] insured's motor vehicle *** with his express or implied consent." The only effect of the indorsement in this aspect of the contract was to include " any person or persons while riding in or legally operating" the motor vehicle and " any person, firm or corporation legally responsible for the operation thereof provided such use or operation is with the permission" therein specified. The limitation of the indemnity to liability to pay damages " to others" (than those specified as entitled to the indemnity) contained in the insuring clause is not extended or changed by any provision of the indorsement. Also, the further provision therein that " insurance payable hereunder shall be applied first to the protection of the named insured, and the remainder, if any, to the protection of other persons entitled to insurance under the provisions and conditions of this clause, as the named insured shall in writing direct," points significantly...

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