Daly v. Employers' Liab. Assur. Corp.

• Decision Date: 03 October 1929
• Parties: DALY v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited, et al. (two cases). GROGAN v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 1

168 N.E. 111

DALY

v.EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited, et al. (two cases).

GROGAN

v.SAME.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 3, 1929.

Appeal from Superior Court, Berkshire County; Burns, Judge.

Separate bills in equity by Mary Daly, by Mary E. Daly, and by John W. Grogan, against the Employers' Liability Assurance Corporation, Limited, and another. Decrees for plaintiffs, and defendants appeal. Affirmed.

F. M. Myers, of Pittsfield, for appellants.

M. B. Warner, of Pittsfield, for appellees.

SANDERSON, J.

These are three bills in equity brought under G. L. c. 175, §§ 112, 113, by the holders of judgments against Louis L. Destremps in actions at law for damages sustained by reason of the negligent operation of an automobile, to obtain the application of the amount due under an insurance policy held by Destremps to the satisfaction of the judgments. The issuance of the insurance policy by the defendant Employers' Liability Assurance Corporation, Ltd., was admitted. The principal ground of defence was that the assured failed to perform a condition of the policy in the following terms: ‘The Assured, when requested by the Corporation, shall aid in effecting settlements, in securing evidence and the attendance of witnesses, in defending suits, and in prosecuting appeals, and shall at all times render to the Corporation all co-operation and assistance in the Assured's power.’ The material evidence upon which the suits were heard in the Superior Court is reported.

The judge found that the assured did not cooperate with the insurer in defending the actions in accordance with the foregoing condition of the policy, but ruled that the insurer in electing to stay in the cases and proceed to trial ‘is estopped from disclaiming liability,’ and ordered the entry of a decree that the insurer pay the plaintiff in each case the amount of his or her judgment with interest from the date of the entry of judgment.

Shortly after the accident in which the plaintiffs were injured the assured accompanied a representative of the insurer to the scene of the accident and furnished him with a statement of facts concerning its occurrence. The assured then went away from Pittsfield leaving no address with the insurer, and thereafter the insurer had difficulty in locating him. Between July, 1926, and April 16, 1928, he had four different addresses, none of which was furnished by him to the insurer or its representative. On April 14, 1928, the insurer found him in New York City and advised him that his cases would be reached on April 16 and asked him to be in Pittsfield on that day. He replied that he could not come because of business and did not know when he could come, and stated to a representative of the insurer on the morning of the 16th, that he could not come to Pittsfield, that his employer would not let him leave. At that time he was told that his unwillingness to attend violated the terms of his policy. The judge found that he could have left New York on the 15th or 16th and have arrived in Pittsfield in time to testify. When the cases were reached in the forenoon of the 16th counsel for the insurer made oral motions for a continuance because of the absence of the assured; these motions were denied. Thereupon the trial proceeded until its conclusion on the next day. Counsel for the insurer, defending the actions on behalf of the assured, offered as a witness one of the occupants of the automobile of the assured at the time of the accident. After the verdicts the insurer by its counsel of record acting for the assured filed motions for new trial and on the same day notified the...