General Exchange Ins. Corp. v. Driscoll
| Decision Date | 31 January 1944 |
| Citation | 315 Mass. 360,52 N.E.2d 970 |
| Parties | GENERAL EXCHANGE INSURANCE CORPORATION v. JOHN P. DRISCOLL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 2, 1943.
Present: FIELD, C.
J., LUMMUS, QUA & RONAN, JJ.
Assignment. Attorney at Law.
Agency, Agent's liability to third person. Contract, Implied. Damages, For breach of contract.
An agreement in writing, whereby one, who had sustained personal injuries and whose motor vehicle had been damaged in a collision purported to
"subrogate" a corporation "to all rights and causes of action" he had against anyone for damage to the vehicle and empowered the corporation
"to sue compromise or settle" in his name or otherwise, was in effect a valid partial assignment of his cause of action against the other party to the collision, creating in the corporation an equitable property right in any recovery by the owner traceable to damage to the vehicle as distinct from his personal injuries.
One who had received from the owner of a motor vehicle an assignment of a claim for property damage to the vehicle in a collision and had given notice of the assignment to an attorney representing the owner in prosecuting against a third party claims for the property damage and personal injuries, was not precluded by the attorney's status as such from enforcing against him his rights as assignee as to a sum of money which the attorney in a settlement had received, earmarked as for the property damage, and had paid to his client.
An action at law for money had and received might be maintained to enforce against an attorney of the owner of a motor vehicle the equitable rights of the assignee under a partial assignment by the owner of his claim for damage to the vehicle in a collision in which the owner also sustained personal injuries, where it appeared that the attorney, with notice of the assignment, had received from a third person money earmarked as in settlement of the claim for property damage and had paid it over to his client.
In an action for money, earmarked as representing a sum received in settlement of a claim for damage to a motor vehicle in a collision brought by the assignee of such claim against the assignor's attorney who, with notice of the assignment, had received sums in settlement of both such claim and a claim of the assignor for personal injuries, recovery might not be of the whole amount so received for damage to the vehicle, but only for so much thereof as was due from the defendant in equity and good conscience: necessary and reasonable expenses properly allocated to such portion of the entire recovery might be deducted.
CONTRACT. Writ in the Superior Court dated September 20, 1939. The case was heard without a jury by Leary, J., who found for the defendant. The plaintiff alleged exceptions.
H. B. Zonis, for the plaintiff. A. Di Cicco, Jr., for the defendant, submitted a brief.
All three counts of the declaration are, in substance, for money had and received. The object of the action is to recover the sum of $300 which came into the hands of the defendant in the manner hereinafter set forth.
There is little or no genuine dispute about what we regard as the decisive facts. The plaintiff insured Francis D. Campion against damage to his automobile by collision. Campion's automobile was in collision with an automobile owned by one Cohen and driven by one Sigel, and was damaged. The plaintiff paid Campion $450 under the terms of its policy and took from him so called "subrogation agreements" by which, as therein stated, he "subrogates" the plaintiff "to all rights and causes of action "he has "against any person, persons or Corporations whomsoever" for damage to his automobile and empowers the plaintiff "to sue, compromise or settle" in his name or otherwise. But Campion also sustained personal injury by the collision, and through the defendant as his attorney he brought actions against Cohen and Sigel for personal injury, with a separate count in each case for property damage. The plaintiff, through its attorney, notified the defendant and the United States Fidelity and Guaranty Company, which carried Cohen's liability insurance, that the plaintiff had been subrogated to Campion's claim for property damage, and notified the defendant that any recovery for such damage should be accounted for to the plaintiff's attorney. The plaintiff's attorney also entered his appearance for Campion in Campion's action against Cohen. Thereafter the defendant, as Campion's attorney, settled his actions against Cohen and Sigel with the United States Fidelity and Guaranty Company, Cohen's insurer, for the total sum of $2,500, which was paid in the form of two drafts, one for $2,200 and one for $300, both payable to Campion and the defendant as "Attorney." On the smaller draft the sum "$300.00" was inserted in a blank space after the printed words "property damage." This draft stated on its face that it was "in full and final payment of a claim for loss or damage in consequence of an accident which occurred on or about Dec. 3rd 1933. . . ." The face of this draft contained no mention of personal injury, although a form of release printed or stamped upon its reverse side referred to "all liability . . . because of personal injuries or damage to property." The draft for $2,200 described the claim in payment of which it was given as simply "Auto Liability." That draft likewise stated that it was "in full payment." Campion gave to the United States Fidelity and Guaranty Company a general release, including claims "on account of all injuries both to person or property." Both drafts were indorsed by Campion and by the defendant as "Attorney" and were deposited to the defendant's bank account for collection and were paid. The defendant has practised law for about thirty years and knows the meaning and effect of subrogation.
Subject to the plaintiff's exception, the defendant testified that out of the $2,500, he retained $55.60 for "costs and disbursements" and $500 for his fee and paid Campion $1,941.40. The defendant further testified that in his discussion or correspondence with the attorney for the United States Fidelity and Guaranty Company with whom he made the settlement there was no mention of the subject of property damage, and that after he received notice of the plaintiff's claim he disregarded property damage entirely in representing Campion, "other than to answer interrogatories."
The judge ruled, as requested by the plaintiff, that the plaintiff became subrogated to the rights of Campion against Cohen "for damage to Campion's automobile alleged to have been caused by Cohen's negligence," but refused to rule that the $300 was in equity and good conscience the money of the plaintiff. In so refusing he made this statement: "I do not find that the defendant received the three hundred dollars ($300.) but that he was merely acting as attorney for Francis D. Campion and as such did not receive the money in a manner that would entitle the plaintiff to recover in this action." It is not clear what this means. We cannot construe it as a finding of fact that the $300 never came into the defendant's hands. If the judge had intended to make that finding, he would not have added the statement that "merely" as attorney for Campion the defendant "did not receive the money in a manner that would entitle the plaintiff to recover in this action." Moreover, the documentary evidence supplied by the draft and its indorsement and the testimony of the defendant himself were such that a finding that the $300 did not pass through the defendant's own bank account would not be warranted. We think that the judge's statement must be construed as a ruling of law that even if the defendant deposited and collected the draft, he is not liable to the plaintiff in this action for the reason that in what he did he was "merely acting as attorney for Francis D. Campion" and kept for himself no more than fees and expenses. The plaintiff excepted to this ruling. The principal question in the case is whether it was correct. We think that it was not.
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