Hobbs v. Cunningham

• Citation: 273 Mass. 529,174 N.E. 181
• Parties: HOBBS v. CUNNINGHAM et al.
• Decision Date: 22 December 1930
• Court: United States State Supreme Judicial Court of Massachusetts

273 Mass. 529

174 N.E. 181

HOBBS

v.CUNNINGHAM et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 22, 1930.

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

Suit by Franklin W. Hobbs against Charles Cunningham and Eagle Indemnity Company. From a decree for plaintiff, Eagle Indemnity Company appeals.

Affirmed.

G. R. Nutter, of Boston, for plaintiff.

F. G. Moulton and G. A. Murphy, both of Boston, for defendants.

CROSBY, J.

This is a bill in equity brought under G. L. c. 175, § 113, as amended by St. 1923, c. 149, § 2, to reach and apply in satisfaction of a final judgment obtained by the plaintiff against the defendant Cunningham, the obligation of the defendant Eagle Indemnity Company (herein referred to as the defendant) under a policy of automobile liability insurance. The case was heard by a judge of the superior court who made certain findings of fact and ordered a final decree to be entered in favor of the plaintiff. From this decree the defendant appealed. The defendant also excepted to the denial of certain requests for rulings made by it and to the allowance of others presented by the plaintiff.

The trial judge found the following facts: on January 1, 1928, one Herbert Evans was the owner of a taxicab which was duly registered, and the defendant, under G. L. c. 90, as amended by St. 1925, c. 346, issued to him a policy of insurance. Evans died testate on June 25, 1928, and, was the owner of the taxicab at the date of his death. His will was duly allowed by the probate court on September 25, 1928, and Michael F. O'Neill was appointed administrator with the will annexed. By his will the testator bequeathed the taxicab to O'Neill. Cunningham operated the taxicab for Evans before his death. Thereafter O'Neill took possession of it and continued its operation by Cunningham under an arrangement whereby O'Neill was to be paid sixty per cent. of the gross receipts and to attend to the repairs. The same arrangement continued during the year 1928 after the death of Evans. As there was not sufficient money in the estate to pay the debts and funeral expenses, O'Neill paid some of them from his share of the receipts from the taxicab. On November 6, 1928, the taxicab while operated by Cunningham struck and injured the plaintiff. After O'Neill's appointment as administrator he went to the registry of motor vehicles to see about having the registration of the taxicab transferred to himself as legatee, but failed to do so, nor did he at any time before the accident by bill of sale or otherwise by any overt act ‘manifest an intention to transfer title to the taxicab from himself as administrator to himself as legatee. * * *’ The registration of the taxicab remained in Evans's name during the entire year 1928. There was no compliance with G. L. c. 140, § 65. Upon all the evidence the judge found and ruled that before the accident there had not been any definite, unequivocal and final act of transfer of the taxicab from O'Neill as administrator to himself as legatee; that it was an asset of the estate of Evans at the time of the accident, and that Cunningham was operating it with the express or implied consent of O'Neill as administrator.

The policy contained the following among other provisions: The insurer ‘hereby agrees to indemnify the Assured named in the declarations * * * and any person responsible for the operation of the named Assured's motor vehicle * * * 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 * * * arising out of the ownership, operation, maintenance, control or use upon the ways of said Commonwealth of such motor vehicle. * * * If the death, insolvency or bankruptcy of the Assured shall occur within the policy period, the policy during the unexpired portion of such period shall cover the legal representatives of the Insured. * * * The unqualified term ‘Assured’ whenever used in this Policy shall include in each instance not only the named Assured but also any other person, firm or corporation entitled to protection under the Agreements, Conditions and Declarations of this Policy, and under the provisions of chapter 346 of the Acts of 1925 of the Commonwealth of Massachusetts and all Acts amendatory thereof and supplementary thereto, but the qualified term ‘named Assured’ or ‘Assured named in the Declarations' shall apply only to the Assured named and described as such in the Declarations.’

The language of the policy above referred to is free from ambiguity. It indemnifies against loss not only the assured but any person operating the motor vehicle with his express or implied consent. If the title to the taxicab became vested in O'Neill as legatee before the accident, the plaintiff cannot maintain this bill. If Cunningham at the time of the accident was not operating it with the express or implied consent of O'Neill as administrator there can be no recovery. The extension of liability of the owner of a motor vehicle under the policy so as to include personal injuries caused by it while being negligently operated by his express or implied consent does not render the owner liable for damages caused by the negligence of one not his servant or agent. Opinion of the Justices, 251 Mass. 569, 599, 147 N. E. 681;Marsal v. Hickey, 225 Mass. 170, 114 N. E. 301;McNeil v. Powers, 266 Mass. 446, 165 N. E. 385.

It cannot be doubted that upon the death of Evans and the allowance of his will by the probate court the title to all personal property left by him passed to O'Neill as his personal representative. It has been many times decided by this court that the title to personal property owned by one who died intestate vests in the administrator of his estate. Lawrence v. Wright, 23 Pick. 128; Rolfe v. Atkinson, 259 Mass. 76, 156 N. E. 51, and cases cited. When an administrator is appointed, the appointment relates back and the personal property vests in him from the date of the decease of the intestate. Hatch v. Proctor, 102 Mass. 351, 353;Hagar v. Norton, 188 Mass. 47, 49, 50, 73 N. E. 1073;S. S. Pierce Co. v. Fiske, 237 Mass. 39, 41, 129 N. E. 609. Upon the appointment of an executor title to the personal property vests in him. It was said by Knowiton, C. J., in Flynn v. Flynn, 183 Mass. 365, at page 366, 67 N. E. 314, ‘The title to all the personal property of a deceased person vests in his executor or administrator, by relation, from the time of his death, and no one else can maintain an action for it.’ Moulton v....