Johnson v. O'Lalor
| Decision Date | 31 March 1932 |
| Citation | 279 Mass. 10,180 N.E. 525 |
| Parties | JOHNSON v. O'LALOR et al. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; Wilford D. Gray, Judge.
Separate suits by Kimball Johnson and William B. Johnson, holders of unsatisfied judgments against John J. O'Lalor, seeking to apply in satisfaction of their executions alleged liability of American Mutual Liability Insurance Company to judgment debtor. Decrees for defendants, and plaintiffs appeal.
Affirmed.
Esmonde T. Doherty and Francis G. Doherty, both of Boston, for appellants.
Roger B. Coulter, of Boston, for appellees.
The plaintiff in each of these cases obtained a judgment against the defendant O'Lalor, and executions were issued thereon which have in no part been satisfied. The plaintiffs bring these suits in equity under G. L. c. 214, § 3(10) St. 1923, c. 149, § 3, in which they seek to apply in satisfaction of their executions the alleged liability of the defendant American Mutual Liability Insurance Company to the judgment debt. The cases were heard together by a judge of the superior court who made certain findings, rulings and order for decrees.
The judge made the following findings of fact: The plaintiff Kimball Johnson, on or about June 30, 1927, received personal injuries resulting from a collision of an automobile, in which he was riding, with an automobile owned by the defendant Charles L. Fenton. He brought suit in the superior court for personal injuries and recovered judgment in the amount of $1,933.52, including costs against the defendant John J. O'Lalor who, at the time of the accident, was operating the automobile owned by Fenton. On June 30, 1927, the plaintiff William B. Johnson was the owner of the automobile which was damaged as the result of said collision with Fenton's automobile, and thereafter he brought suit in the superior court for property damage and recovered judgment in the amount of $855.23, including costs, against the defendant O'Lalor. The accident occurred on a public highway in this commonwealth.
The defendant American Mutual Liability Insurance Company, on or about January 1, 1927, issued to the defendant Charles L. Fenton a policy of insurance, introduced in evidence at the trial, which was in the form required by G. L. c. 90, St. 1925, c. 346, St. 1926, c. 368, St. 1928, c. 381, § 4. The policy also covered property damage caused by the automobile owned by Fenton in accordance with the terms of the policy introduced in evidence. This policy was in full force and effect at the time of the above mentioned accident.
On the evening of the accident Walter F. Fenton called his brother Charles L. Fenton on the telephone and asked permission to use his car that evening. Permission was given as requested. On other occasions before the date of the accident Charles L. Fenton had given this brother permission to use the car, and each time it had been driven by Walter F. Fenton. Nothing was said in the conversation between the brothers the night of the accident as to who should drive the car, and the entire conversation about lending it was in substance as above stated. On account of the previous course of dealings between the parties, it was only necessary for Walter F. Fenton to go to the garage where the automobile was stored in order to obtain possession of it. On obtaining it he drove to the residence of the defendant O'Lalor and soon thereafter surrendered the wheel of the car to O'Lalor. Shortly before the accident Walter F. Fenton entered the rear seat of the automobile with a young lady, leaving O'Lalor alone in the front seat and operating the automobile, and this situation continued up to the time of the accident.
On these findings of fact the judge found and ruled that Walter F. Fenton ‘at the time of the accident was a person responsible for the operation of the motor vehicle of Charles L. Fenton, with the express or implied consent of Charles L. Fenton, and that if the plaintiff had obtained a judgment against Walter F. Fenton...
To continue reading
Request your trial
-
Mahoney v. Am. Auto. Ins. Co.
...vehicle to anyone else) because he had been given the right to possess the automobile by the owner. Ibid. Accord Johnson v. O'Lalor, 279 Mass. 10, 12, 180 N.E. 525 (1932) (“[T]he judge found and ruled that Walter F. Fenton ‘at the time of the accident was a person responsible for the operat......
-
Maryland Indem. Ins. Co. v. Kornke
...Grant v. Knepper, 245 N.Y. 158, 165, 156 N.E. 650, 652, 54 A.L.R. 845; Arcara v. Moresse, 258 N.Y. 211, 179 N.E. 389; Johnson v. O'Lalor, 279 Mass. 10, 180 N.E. 525. And see Appleman Automobile Liability Insurance, 1938 Ed., p. 107 and cases In Melvin v. American Automobile Insurance Compan......
-
Klefbeck v. Dous
...must be accepted as true as they are not shown to be plainly wrong. Berman v. Coakley, 257 Mass. 159, 153 N.E. 463;Johnson v. O'Lalor, 279 Mass. 10, 180 N.E. 525. There is no express finding that the company is estopped, but the findings in so far as they go support such a conclusion. The j......
-
Exch. Realty Co. v. Bines
...weight to the findings upon oral evidence made by the trial judge, which are not to be reversed unless plainly wrong. Johnson v. O'Lalor, 279 Mass. 10, 180 N.E. 525;Markiewicus v. Methuen, Mass., 16 N.E.2d 32. The negotiations for the purchase of the property were conducted entirely by Sher......