Kana v. Fishman

• Decision Date: 26 June 1931
• Citation: 176 N.E. 922,276 Mass. 206
• Parties: KANA v. FISHMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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.

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 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 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 with an attorney in that office who had been instructed to investigate. This attorney testified that he did not represent the insurer, but did whatever he was instructed to do by his superiors in the office. He saw the plaintiff; at some time had her examined physically by a physician; and, from time to time conversed with her attorney; but had no dealings with the assured. There was no evidence of authority in him to waive compliance with the conditions of the policy. On May 25, 1927, the office of the insurer's counsel at Boston notified the assured that investigation would be made upon the understanding that in so doing there was no waiver of the assured's breach of the condition to give immediate written notice of the happening of the accident, and of the right to disclaim liability for that reason. On February 21, 1929, that office notified the assured that since he had not notified the insurer of the bringing of suit, and on account of his neglect to send the summonses, the insurer disclaimed liability.

[2] The failure so to notify and to send were breaches of conditions which relieved the insurer of liability under the policy, unless waived; Boston Elevated Railway v. Maryland Casualty Co., 232 Mass. 246, 251, 122 N. E. 196, and cases cited, or unless, as the plaintiff contends, knowledge of the situation obtained from the plaintiff and her attorney and the transaction with the latter satisfied the conditions of the policy or constituted estoppel or waiver. It has been decided that the effect of G. L. c. 175, §§ 112 and 113, as amended (Laws 1923, c. 149, §§ 1, 2) is to relieve the assured of the necessity of satisfying the judgment recovered against him, before being able to recover against the insurer upon a policy insuring against the loss established by the judgment, and to enable the judgment creditor to secure the application of the insurance money upon his judgment without such proof. Lorando v. Gethro, 228 Mass. 181, 117 N. E. 185, 1 A. L. R. 1374;McMahon v. Pearlman, 242 Mass. 367, 136 N. E. 154, 23 A. L. R. 1467;Lunt v. AEtna Life Ins. Co., 253 Mass. 610, 149 N. E. 660. S...