Klefbeck v. Dous

• Decision Date: 18 February 1939
• Citation: 302 Mass. 383,19 N.E.2d 308
• Parties: KLEFBECK v. DOUS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 383

19 N.E.2d 308

KLEFBECK

v.DOUS et al.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 18, 1939.

Bill by Maizie Klefbeck against Hugo B. Dous and his automobile liability insurer to reach and apply in satisfaction of plaintiff's judgment against defendant Dous the obligation of the insurer under the policy issued by it. From a final decree for plaintiff, the insurer appeals.

Affirmed.Appeal from Superior Court, Essex County; Burns, Judge.

E. R. Butterworth, of Lynn, for plaintiff.

Boutwell & Brown, of Boston, for defendant Dous.

J. D. Sullivan, of Boston, for defendant Merchants Mut. Casualty Co.

RONAN, Justice.

The plaintiff recovered a judgment in the District Court of the United States for the District of Massachusetts against the defendant Dous, for personal injuries received by her on account of the operation of an automobile by Dous upon a highway in Topsfield, in this Commonwealth, on September 18, 1936. She brings this bill under G.L. (Ter.Ed.) c. 175, § 113, and c. 214, § 3(10), to reach and apply, in satisfaction of her judgment, the obligation of the defendant company under an automobile liability policy issued by it to Dous at Portland, Maine, which contained an extraterritorial clause covering the operation of his automobile upon the public ways of this Commonwealth. The defendant company appealed from a final decree ordering it to pay the plaintiff's judgment.

The policy was issued under the law of the State of Maine which, in so far as material, provides that ‘The liability of every company which insures any person, firm, or corporation against accidental loss or damage on account of personal injury or death, or on account of accidental damage to property, shall become absolute whenever such loss or damage for which the insured is responsible, occurs.’ Rev.Sts. of Maine (1930) c. 60, § 177. The rights of Dous against the company are fixed by the contract of insurance which must be construed in accordance with the law of the place where it was executed and delivered, Lundblad v. New Amsterdam Casualty Co., 265 Mass. 158, 163 N.E. 874;John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106, and may be enforced here by such existing procedure as may be found appropriate. Weidman v. Weidman, 274 Mass. 118, 174 N.E. 206, 76 A.L.R. 1359;Sleeper v. Stetson, 280 Mass. 248, 182 N.E. 342. The plaintiff in seeking recourse to the policy has no greater rights than Dous, and if he is not entitled to indemnity under the policy she cannot prevail. Kana v. Fishman, 276 Mass. 206, 176 N.E. 922;Goldberg v. Preferred Accident Ins. Co. of New York, 279 Mass. 393, 181 N.E. 235;Souza v. Car & General Assurance Corp. Ltd., 281 Mass. 117, 183 N.E. 140; Blair v. Travelers Ins. Co., 291 Mass. 432, 197 N.E. 60. The rights of the plaintiff against the insured in the tort action, which was tried in the Federal Court, were determined by the laws of the Commonwealth, Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, and the judgment bound not only the nominal parties but also the insurance company, which defended the action in accordance with the terms of the policy. Boston & Maine Railroad v. T. Stuart & Son Co., 236 Mass. 98, 127 N.E. 532;New York Central & Hudson River Railroad v. T. Stuart & Son Co., 260 Mass. 242, 157 N.E. 540. The verdict established the extent of the plaintiff's damages but it did not determine her rights against the insurance company. Lorando v. Gethro, 228 Mass. 181, 117 N.E. 185, 1 A.L.R. 1374;State Farm Mutual Automobile Ins. Co. v. Coughran, 303 U.S. 485, 58 S.Ct. 670, 82 L.Ed. 970.

The declaration in the tort action contained two counts, one for negligence and the other for the operation of an illegally registered automobile. There was a general verdict for the plaintiff. The defendant company contends that Dous falsely represented to it that he was a resident of Maine at the time he applied for and secured the insurance when in fact he was a resident of Malden, in this Commonwealth, and that, as the jury found that his automobile was illegally registered, the company cannot be held liable on the policy. It is clear that the charge to the jury, as shown by the company's offer of proof, permitted the jury to find that the automobile was illegally registered even if Dous was a resident of Maine, if he had operated it for more than thirty days in this Commonwealth in 1936, prior to the date of the accident, G.L. (Ter.Ed.) c. 90, § 3, as amended by St.1933, c. 188, Hanson v. Culton, 269 Mass. 471, 169 N.E. 272, or that it was illegally registered because Dous was a resident of this Commonwealth. Jenkins v. North Shore Dye House, Inc., 289 Mass. 561, 194 N.E. 823. If the jury came to the conclusion that the automobile was not properly registered merely on account of its presence here beyond the time allotted to a nonresident, then there is nothing in the company's contention that the payment of indemnity for injury caused by such an automobile would be contrary to our public policy. The reverse is true. Todd v. Traders' & Mechanics' Ins. Co. 230 Mass. 595, 120 N.E. 142;McMahon v. Pearlman, 242 Mass. 367, 136 N.E. 154, 23 A.L.R. 1467;Opinion of the Justices, 251 Mass. 569, 147 N.E. 681. See G.L. (Ter.Ed.) c. 90, §§ 34A-34J. The company, however, contends that the verdict was based upon the ground that Dous was a resident of Malden. The judge in the present suit ‘finds and rules that defendant Dous had a business and residential address, and a mail address at 98 Grant Street, Portland, Maine, when he made application for the policy’; and, evidently relying upon G.l. (Ter.Ed.) c. 175, § 186 (which the defendant company refers to in its brief as a ‘statutory provision [which] became the law of the case and was so considered by the Trial Court’), the judge further found that ‘there is no evidence of bad faith or intent to deceive on the part of defendant Dous, and the matter alleged by defendant insurance co. to have been misrepresented would not increase the risk of loss.’ We need not consider the applicability of the statute referred to (see Kravit v. United States Casualty Co., 278 Mass. 178, 179 N.E. 399;Faris v. Travelers' Indemnity Co., 278 Mass. 204, 179 N.E. 605), or whether this last finding is supported by the evidence. We do not put this opinion on the ground that the company is foreclosed from raising the point by accepting the law as laid down by the trial judge. Button v. Crowley, 284 Mass. 308, 187 N.E. 615;Arabia v. John Hancock Mutual Life Ins. Co., Mass., 17 N.E.2d 202. The point, if properly raised, becomes immaterial in the view of the case that we adopt.

There was evidence that, a few months before the trial, the plaintiff's attorney conferred with the attorney who tried the tort action for the company and showed him a certificate from the board of assessors of Malden, to the effect that Dous was assessed a poll tax for 1934, 1935 and 1936, and a copy of the application of Dous for the registration in Maine of his automobile for 1936, upon which his mailing address was set forth as 40 Maple Street, Malden, and his residence as 98 Grant Street, Portland, Maine. There was also evidence that, before the trial of the plaintiff's action, this attorney for the defendant company had taken Dous's oath to answers to interrogatories filed in a companion case showing that Dous's family consisted of his wife, who lived at 40 Maple Street, Malden, that the telephone there was listed in his name, and that he lived there when he came to Malden, usually one night a week. This same attorney appeared for Dous on May 4, 1938, in the Superior Court, in Essex County, to dismissan action which the plaintiff had brought to recover for the same injuries. He continued to represent Dous in behalf of the company after the action in the United States District Court was ended. The attorney notified Dous under date of February 2, 1938, in a letter addressed to him at 40 Maple Street, Malden, that the jury had returned a verdict for the plaintiff for $1,250 ‘which we consider quite satisfactory. We return herewith your receiped poll tax from Portland, Maine, for the year 1936.’ The judge found that the company ‘had notice through its agents and/or attorney of all facts on which it now relies to disclaim liability because of a breach of a condition of said policy, or, if without actual notice of the breach of condition of the policy had information sufficient to put it upon inquiry,’ and entered a final decree ordering the company to pay the judgment.

The company could investigate the claim and determine whether it came within the contract of insurance. If satisfied that the accident was not within the coverage, it could disclaim liability and withdraw from the case. Phillips v. Stone, Mass., 8 N.E.2d 890;Restighini v. Hanagan, Mass., 18 N.E.2d 1007. The company, however, could not, after having acquired information sufficient to warrant a disclaimer, continue in...