Gulesian v. Senibaldi

• Decision Date: 02 February 1935
• Parties: GULESIAN v. SENIBALDI et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 384

194 N.E. 119

GULESIAN v. SENIBALDI et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 2, 1935

Suit by Willis H. Gulesian against Lawrence Senibaldi and another. From an adverse decree, defendant Glens Falls Indemnity Company appeals.

Affirmed.

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

R. H Lee, of Boston, for appellant Glens Falls Indemnity Co.

L. S Nicholson, of Boston, for appellee.

PIERCE, Justice.

This is a bill in equity under G. L. (Ter. Ed.) c. 175, §§ 112 113, and chapter 214, § 3(10), to reach the obligation of the defendant indemnity company under a compulsory motor vehicle liability policy, issued to the defendant Senibaldi, and to apply such obligation to the satisfaction of a judgment recovered by the plaintiff against the defendant Senibaldi.

It was agreed ‘ that the defendant Senibaldi and his automobile were involved in an accident on August 20, 1931, in which the plaintiff suffered personal injuries for which on May 28, 1932, he recovered the judgment described in paragraph three of the bill of complaint; that Senibaldi's automobile and its registration number were as described in paragraph one of the bill; and that on or about April 3, 1931, the defendant insurance company had issued a liability policy with respect to said automobile complying with the provisions of the compulsory insurance act.’

The report of facts discloses that Senibaldi arranged for said policy through the William A. Muller Investment Corporation and gave it a note for the premium of $39.60, dated April 3, 1931, payable $3 down, and the balance in five installments of $7.32 each, the first payable April 10, 1931, and monthly thereafter. Senibaldi made the April and May payments but no other payments. The policy had been deposited with said corporation as collateral security for the payment of said note ‘ with express and irrevocable power, in case of any default on the part of the maker * * * hereof, to cancel said policies in the name and stead of the insured.’ Upon default in the June installment, said corporation on June 18, 1931, turned the policy over to the defendant insurance company for cancellation. On June 19, 1931, the latter sent by ordinary mail a cancellation notice in a form prescribed by the registry of motor vehicles to said registry and like notice to Senibaldi addressed to him at his address given in the ‘ Declarations' that form part of the policy. In these notices, Senibaldi is spelt ‘ Senebaldi’ ; the policy and automobile are described correctly but the registration number is not stated although a blank space for this information headed ‘ Registration No.’ appeared in the form prescribed by the registry and employed by the insurer; the effective date of cancellation stated was ‘ July 5, 1931,’ and the reason for cancellation given was ‘ at the request of the assured.’ The trial judge found ‘ as a fact that the notices of cancellation were received respectively by the Registry and Senibaldi on June 20, 1931’ ; that no " notice of intent to revoke,' and no notice of revocation of, Senibaldi's registration was given him by the Registry until December 2, 1931'; that on ‘ that date such notices were sent him, the first dated June 20, and notifying him that by law the Registrar is ‘ required to revoke the registration of motor vehicle (description of make, type and engine number) unless on or before July 4 you file with the Registrar * * * and application for registration * * * accompanied by a certificate as defined in section 34A (G. L. [Ter. Ed.] c. 90), or a complaint as specified in section 113D, chapter 175 is filed,’ and the second dated July 5, notifying him that the registration of his motor vehicle (Reg. No. 727,450) had been revoked. 'The insurance policy included, in addition to the express provisions relating to cancellation required by St. 1925, c. 346, and acts in amendment thereof and in addition thereto, under the general heading, ‘ Cancellation,’ the further provision-‘ Notice of cancellation sent by registered mail to, or delivered at, the address of the named assured as given in the declarations shall be a sufficient notice.’

The judge states that ‘ the only question at issue between the parties is as to whether or not the policy had been cancelled prior to the...