Hurley v. Flanagan

• Citation: 48 N.E.2d 621,313 Mass. 567
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 26 April 1943
• Parties: BARBARA A. HURLEY v. JOHN J. FLANAGAN & others.

313 Mass. 567

48 N.E.2d 621

BARBARA A. HURLEY v. JOHN J. FLANAGAN & others.

Supreme Judicial Court of Massachusetts, Norfolk.

April 26, 1943

October 7, 1941.

Present: FIELD, C.

J., DONAHUE, QUA COX, & RONAN, JJ.

Insurance, Motor vehicle liability insurance. Evidence, Presumptions and burden of proof. Equity Pleading and Practice, Master conclusions from findings, exceptions to report. By the provisions of Section 85C, added to G. L. (Ter. Ed.) c. 231 by St.

1937, c. 439, the burden of proving that an operator of a motor vehicle against whom a judgment had been rendered for personal injuries caused by his negligence, was not a person responsible for the operation of the vehicle with the express or implied consent of the insured under a compulsory motor vehicle insurance policy covering the vehicle, was on the defendant in a suit by the judgment creditor against the insurer to enforce the policy.

Subsidiary findings by a master, in a suit to enforce a policy of compulsory motor vehicle insurance in satisfaction of a judgment for personal injuries rendered against an operator of the automobile covered by the policy, which showed that the operator was not the insured and that he was not a person responsible for the operation with the insured's express consent and left in the field of conjecture the question whether there was implied consent of the insured to such responsibility, required a conclusion that the insurer had not sustained the burden of proving the affirmative defence of absence of consent placed upon it by Section 85C added to G. L. (Ter. Ed.) c. 231 by St.

1937, c. 439, irrespective of the presumption referred to in that statute, and required a decree for the plaintiff.

No prejudicial error appeared in the overruling of exceptions to a master's report based on his admission of certain evidence and on language in his statement of his conclusions which seemed to show that he considered the presumption described in Section 85C added to G. L. (Ter. Ed.) c. 231 by

St. 1937, c.

439, where it did not appear that the master gave any consideration to such evidence or presumption in making his subsidiary findings, upon which alone his conclusions were based, and that this court reached its conclusion unaffected by the conclusions of the master.

BILL IN EQUITY, filed in the Superior Court on September 11, 1939. From an interlocutory decree overruling exceptions to the master's report and confirming the report, entered by order of Buttrick, J., and a final decree, entered by order of Beaudreau, J., the defendant insurer appealed.

D. H. Fulton, for the defendant American Motorists Insurance Company. J. J. Curran, for the plaintiff.

FIELD, C.J. The plaintiff recovered a judgment in the Superior Court against John J. Flanagan in an action of tort for personal injuries sustained by the plaintiff as the result of the negligent operation by said Flanagan, on December 25, 1937, of an automobile owned by Thomas S. Rubicus covered by a policy of liability insurance issued under the compulsory motor vehicle liability insurance law to said Rubicus by the American Motorists Insurance Company, hereinafter referred to as the company. The present suit in equity was brought in the Superior Court, by the plaintiff in the action at law against Flanagan, Rubicus and the company to reach and apply the proceeds of the policy of insurance to the payment of the judgment. G. L. (Ter. Ed.) c. 175, Section 113; c. 214, Section 3 (10).

The case was referred to a master. A decree was entered that the bill be taken pro confesso against the defendants Flanagan and Rubicus. The master filed a report to which were appended objections of the defendant company. An interlocutory decree was entered overruling the exceptions and confirming the report, and a final decree was entered ordering the company to pay to the plaintiff the amount of the judgment in the action at law with interest and costs. The company appealed from the interlocutory decree and from the final decree.

The liability insurance policy issued to Rubicus with respect to the automobile owned by him conformed to the statutory requirement that it cover "any person responsible for the operation of the insured's motor vehicle with his express or implied consent." G. L. (Ter. Ed.) c. 90, Section 34A, as appearing in St. 1935, c. 459, Section 2. G. L. (Ter. Ed.) c. 175, Section 113A. O'Roak v. Lloyds Casualty Co. 285 Mass. 532 . The only matter of fact in controversy between the plaintiff and the company in the present case is whether Flanagan was so "responsible" with the "express or implied consent" of Rubicus. In the decision of this issue of fact the provisions of G. L. (Ter. Ed.) c. 231, Section 85C, added by St. 1937, c. 439, are applicable, that in "any suit in equity under section one hundred and thirteen of chapter one hundred and seventy-five and clause (10) of section three of chapter two hundred and fourteen to reach and apply the proceeds of any motor vehicle liability policy, as defined in section thirty-four A of chapter ninety, by a judgment creditor in any action to recover damages for bodily injuries . . . arising out of an accident or collision in which a motor vehicle . . . was involved . . . it shall be presumed that at the time of such accident or collision such vehicle was being operated, maintained, controlled or used with the express or implied consent of the named person insured in such policy . . . and the absence of such consent shall be an affirmative defence to be set up in the answer and proved by the defendant." This "affirmative defence" was set up by the company in its answer. The matter for decision is whether on the facts found by the master this "affirmative defence" has been "proved" by the company.

The master in his report states the subsidiary facts found by him, and following such statement states that, in "accordance with the facts hereinabove found and set forth, I find that while at the time of the accident . . . the automobile owned by the defendant Rubicus and operated by the defendant Flanagan . . . was not being operated or used with the express consent of the defendant Rubicus, the defendant company has not sustained the burden of proving that at the time of the accident in question said automobile was not being operated by the defendant Flanagan with the implied consent of the defendant Rubicus. Consequently, in accordance with the facts hereinabove found and set forth and the presumption provided for in the General Laws of the Commonwealth of Massachusetts, Chapter 231, Section 85C thereof, I find that at the time of the accident in question the automobile in question was being operated, maintained, controlled and used with the implied consent of the defendant Rubicus, the person named as the assured in the policy of insurance issued by the defendant company."

Where, as here, a master's report contains findings in the nature of ultimate findings or conclusions based solely on subsidiary findings, "it was the duty of the judge to draw proper inferences from the findings unaffected by the conclusions of the master, and it is our duty to draw such inferences unaffected by the conclusions of the master or those of the judge." Robinson v. Pero, 272 Mass. 482 , 484. "We have before us all the subsidiary facts that were found by the master, and it is our duty to draw such inferences as, in our opinion, are proper." Albano v. Puopolo, 309 Mass. 501, 507.

The master's report contains the following findings of subsidiary facts: "For some time prior to and in July, 1937, the defendant Rubicus lived in West Hanover, Massachusetts, and in his home there dwelt with him his wife, his son, his married daughter and her husband, the defendant Flanagan. In July, 1937, the defendant Rubicus purchased . . . [an] automobile and immediately thereafter arranged to have it duly registered for operation . . . . The defendant Rubicus did not, either at the time of his acquisition of said automobile or subsequent thereto, know how to operate said car and he never did operate it. The automobile was garaged at the Rubicus home in West Hanover and the keys for said car were always left in the automobile or in the kitchen of the Rubicus house. Rubicus gave express permission to his son and to his daughter to operate the car whenever they or either of them should desire and each of them did drive the car frequently. He never gave express permission to his son-in-law, the defendant Flanagan, to operate the car but, on the other hand, he never expressly forbade said Flanagan to drive it."

"During the period beginning with the time of the acquisition of the automobile by the defendant Rubicus and for the balance of the year 1937 the defendant Flanagan was not employed and spent a good deal of time at the Rubicus home in West Hanover. Throughout this period his relationship with his father-in-law and the rest of the family was cordial. During this period his wife, Rubicus' daughter, was pregnant and by December, when the birth of her child was expected shortly, she had practically ceased to drive the automobile. On at least several occasions during the several weeks preceding Christmas, 1937, the defendant Flanagan had driven the automobile away from the Rubicus' home for the purpose of going to a nearby store which was about a drive of a minute or two away to make purchases for his own account and on those occasions the defendant Rubicus was either at his home or in the garden outside...