Kana v. Fishman

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtWAIT
Citation176 N.E. 922,276 Mass. 206
Decision Date26 June 1931
PartiesKANA v. FISHMAN et al.

276 Mass. 206
176 N.E. 922

KANA
v.
FISHMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 26, 1931.


Exceptions and Appeal from Superior Court, Suffolk County; Winfred H. Whiting, Judge.

Suit by Annie Kana against Nathan Fishman and others. The suit was dismissed, and plaintiff brings exceptions, and appeals.

Exceptions overruled, and decree affirmed.


[276 Mass. 208]F. I. Rose, of Boston, for appellant.

R. L. Mapplebeck, of Boston, for appellees.


WAIT, J.

The plaintiff brought her bill in equity under G. L. c. 175, § 113, as amended by St. 1923, c. 149, § 2, which authorizes a judgment creditor who has suffered loss or damage on account of bodily injury or of damage to property, to compel the application to the judgment of insurance money due to the judgment debtor, if at the accrual of the cause of action, the debtor was insured against liability for such loss. She had recovered judgment against the defendant Fishman, for injury received in January 1927, and sought to compel payment out of insurance claimed to be due to Fishman from the defendant New Jersey Fidelity & Plate Glass Insurance Company, which had issued a policy insuring Fishman against loss arising from accident on the premises where the plaintiff was hurt. The bill was taken as confessed against Fishman who defaulted. The insurance company admitted that the policy had issued and was in force in January, 1927; but denied liability to Fishman or the plaintiff. It set up that the policy required as conditions of liability that the assured, on the occurrence of an accident [276 Mass. 209]covered by the policy, should ‘give immediate written notice thereof with the fullest information obtainable at the time, to the company at its home office at Newark, New Jersey or to one of its duly authorized agents'; should give like notice of any claim made on account of such accident; and if, thereafter, suit was brought against him, ‘shall immediately forward to the company every summons or other process served upon the assured’; and that these conditions had not been complied with.

On motion eight issues were framed for a jury. The cause is before us upon exceptions claimed at the trial to the jury, and an appeal from a final decree dismissing the bill with costs. At the jury trial the plaintiff claimed exception to the denial of her motion that two additional issues be framed. The original order framing the issues provided ‘that such other issues be framed as may

[176 N.E. 923]

be necessary by the trial Court.’ Whether any and, if any, what additional issues should be framed and submitted to the jury under this order rested in the discretion of the trial judge. No abuse of discretion in denying the motion appears. Bolton v. Van Heusen, 249 Mass. 503, 506, 144 N. E. 384.

There is no dispute that at no time did the assured notify the insurer in writing that suit had been brought by the plaintiff or send to it any summons or other process issued in that action. The plaintiff's writ against Fishman was dated May 19, 1927. It was served on June 1, and was entered in July, 1927. Fishman gave the summons to an attorney, Applebaum; filed a petition in bankruptcy; and troubled himself no more about it. He was defaulted for failure to answer interrogatories on October 4, 1928; damages were assessed January 7, 1929; judgment entered on January 28, and execution issued January 29, 1929. This bill was filed on February 6, 1929. He first learned of the accident some days after May 12, 1927, from a letter, dated May 12, 1927, sent to him by the plaintiff's attorney, and about May 24, 1927, sent notice in writing to Thomas J. Nolan & Co., the insurer's agent at Boston. The letter of May 12, was transmitted to the office of the counsel of the insurer at Boston; and, in June, counsel for the plaintiff consulted [276 Mass. 210]with an attorney in that office who had been instructed to investigate. This attorney testified that he did not represent the insurer, but did...

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24 practice notes
  • John Beaudette, Inc. v. Sentry Ins. a Mut. Co., No. CIV.A. 96-10963-MBB.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 2, 1999
    ...of the insurance money" to satisfy the judgment without requiring the insured to initially pay the judgment. Kana v. Fishman, 276 Mass. 206, 176 N.E. 922, 923 All of the relevant statutes, sections 112 and 113 and section three of chapter 214, authorize the judgment creditor to reach a......
  • Walker v. American Automobile Ins. Co., No. 22770.
    • United States
    • Court of Appeal of Missouri (US)
    • April 13, 1934
    ...Miller v. Metropolitan Casualty Ins. Co., 50 R.I. 166; United States Casualty Co. v. Breese, 21 Ohio App. 521; Kana v. Fishman (Mass.), 176 N.E. 922; Berg v. Associated Employers' Reciprocal & Indemnity Exchange, 47 Idaho, 386; Kruger v. California Highway Indemnity Exchange, 201 Cal. 6......
  • Houran v. Preferred Acc. Ins. Co. of New York, No. 109.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 4, 1937
    ...which the insurer might have raised against the insured. This is so whether the right of action is conferred by statute (Kana v. Fishman, 276 Mass. 206, 176 N.E. 922, 923; Coleman v. New Amsterdam Casualty Co., 247 N.Y. 271, 275, 160 N.E. 367, 72 A.L.R. 1443, and cases cited in Annotations,......
  • Polito v. Galluzzo
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 11, 1958
    ...559, 564, 17 N.E.2d 885; Sanborn v. Brunette, 315 Mass. 231, 52 N.E.2d 384. We think there was no waiver or estoppel. Kana v. Fishman, 276 Mass. 206, 176 Page 379 N.E. 922; Goldberg v. Preferred Accident [337 Mass. 366] Ins. Co., 279 Mass. 393, 181 N.E. 235; Phillips v. Stone, 297 Mass. 341......
  • Request a trial to view additional results
24 cases
  • John Beaudette, Inc. v. Sentry Ins. a Mut. Co., No. CIV.A. 96-10963-MBB.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 2, 1999
    ...of the insurance money" to satisfy the judgment without requiring the insured to initially pay the judgment. Kana v. Fishman, 276 Mass. 206, 176 N.E. 922, 923 All of the relevant statutes, sections 112 and 113 and section three of chapter 214, authorize the judgment creditor to reach a......
  • Walker v. American Automobile Ins. Co., No. 22770.
    • United States
    • Court of Appeal of Missouri (US)
    • April 13, 1934
    ...Miller v. Metropolitan Casualty Ins. Co., 50 R.I. 166; United States Casualty Co. v. Breese, 21 Ohio App. 521; Kana v. Fishman (Mass.), 176 N.E. 922; Berg v. Associated Employers' Reciprocal & Indemnity Exchange, 47 Idaho, 386; Kruger v. California Highway Indemnity Exchange, 201 Cal. 6......
  • Houran v. Preferred Acc. Ins. Co. of New York, No. 109.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 4, 1937
    ...which the insurer might have raised against the insured. This is so whether the right of action is conferred by statute (Kana v. Fishman, 276 Mass. 206, 176 N.E. 922, 923; Coleman v. New Amsterdam Casualty Co., 247 N.Y. 271, 275, 160 N.E. 367, 72 A.L.R. 1443, and cases cited in Annotations,......
  • Polito v. Galluzzo
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 11, 1958
    ...559, 564, 17 N.E.2d 885; Sanborn v. Brunette, 315 Mass. 231, 52 N.E.2d 384. We think there was no waiver or estoppel. Kana v. Fishman, 276 Mass. 206, 176 Page 379 N.E. 922; Goldberg v. Preferred Accident [337 Mass. 366] Ins. Co., 279 Mass. 393, 181 N.E. 235; Phillips v. Stone, 297 Mass. 341......
  • Request a trial to view additional results

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