Daly v. Employers Liab. Assurance Corp., Ltd.
| Decision Date | 03 October 1929 |
| Citation | 269 Mass. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | MARY DALY v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, LIMITED, & another. |
September 17, 1929.
Present: RUGG, C.
Insurance, Against liability of owner or operator of motor vehicle. Estoppel. Equity Jurisdiction, To enforce liability of insurer against motor vehicle liability.
At the hearing of a suit in equity under G.L.c. 175, Sections 112, 113, to compel the insurer of the owner of a motor vehicle to pay a judgment obtained against the insured, the insurer sought to avoid liability on the ground that the insured had violated a provision of the policy requiring him, when requested by the insurer, to aid "in securing evidence and the attendance of witnesses, in defending suits," and at all times to render to the insurer "all co-operation and assistance" in his power. It appeared that, after the accident which gave rise to the claim upon which the judgments were founded, the insured had accompanied a representative of the insurer to the scene of the accident and had furnished him with a statement of facts concerning its occurrence, and thereafter had left the Commonwealth that, when the action was about to be tried, the insurer's counsel, who under the provision of the policy was defending the action, having learned that the insured was in another State, asked him to come to court and that he replied that he could not come. The insurer's counsel then told the insured that his unwillingness to attend violated the terms of the policy. When the action was reached for trial the counsel made an oral motion for continuance because of the absence of the insured without filing an affidavit under Common Law Rule 24 of the Superior Court
(1922). The motion was denied. The counsel continued to represent the insured through the trial, and, after a verdict for the plaintiff, filed a motion for a new trial and on the same day notified the insured that the insurer disclaimed liability and would withdraw from the cases on a specified date; and upon that date counsel withdrew from the cases. Held, that
(1) The statement to the insured before the trial, that his unwillingness to attend was a violation of the terms of the policy, was not in substance or effect a disclaimer of full responsibility for continuing in sole control of the defence or a notice that the insurer did not thereby intend to waive any defence to its liability under the policy;
(2) As the insurer continued to conduct the case for the insured in the circumstances disclosed without suggesting that the insured should engage personal counsel or otherwise take measures to protect his own interest in the case, it could not be heard to say that the failure of the insured to attend as a witness relieved it from liability under the policy; (3) A decree for the plaintiff was warranted.
THREE BILLS IN EQUITY, filed in the Superior Court on August 17, 1928, and described in the opinion, for the collection under G.L.c. 175, Sections 112, 113, of judgments against Louis L. Destremps in the sums of $2,551.73, $536.07, and $397.76, respectively.
In the Superior Court, the suits were heard together by Burns, J. Material facts found by him are stated in the opinion. A final decree for the plaintiff was entered in each suit. The defendant appealed.
F.M. Myers, for the defendant corporation. M.B. Warner, for the plaintiffs.
These are three bills in equity brought under G.L.c. 175, Sections 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...
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