McNulty v. Aetna Life Ins. Co.

• Decision Date: 31 January 1940
• Citation: 25 N.E.2d 338,305 Mass. 89
• Parties: McNULTY v. AETNA LIFE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 89

25 N.E.2d 338

McNULTY

v.AETNA LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 31, 1940.

Exceptions from Superior Court, Suffolk County; Morton, Judge.

Tort action by Eunice McNulty against the Aetna Life Insurance Company for damages sustained by the plaintiff allegedly because the defendant deprived plaintiff of a cause of action against a third party through negligence and through fraud. On plaintiff's exceptions.

Exceptions overruled.T. J. Colbert and C. B. Cotter, both of Boston, for plaintiff.

G. Petersen and H. W. Hardy, both of Boston, for defendant.

QUA, Justice.

This is an action of tort. The declaration alleges that the plaintiff sustained personal injuries as a result of negligent operation of an automobile by one Steptoe; that the defendant insured Steptoe against claims for personal injuries; that the plaintiff ‘entered claim with the defendant’ through an attorney; that the defendant ‘negligently, carelessly and wilfully settled said claim’ with the attorney for less than the injuries were worth and accepted from the attorney releases purporting to be signed by the plaintiff but in fact forged; that the defendant knew or by the exercise of due diligence should have known that the releases were not genuine and in accepting them and by its action in settling the claim with the attorney without the plaintiff's authority ‘contrived and conspired’ with the attorney ‘and defrauded the plaintiff of her right to bring an action at law’ against Steptoe within the time limited by statute, ‘all to her great damage.’

The suggestion of conspiracy in the declaration amounts to nothing more than an allegation of joint action between the defendant and the plaintiff's attorney, who is not a party. It is immaterial in this case. Parker v. Huntington, 2 Gray, 124;Fleming v. Dane, Mass., 22 N.E.2d 609, and cases cited. At most, the charge against the defendant is that it deprived the plaintiff of her cause of action against Steptoe (1) through negligence and (2) through fraud.

The defendant admitted that it insured Steptoe, and that the plaintiff had ‘entered’ a claim against Steptoe through an attorney. The evidence at the trial tended to show that a few weeks after the plaintiff had been struck by Steptoe's automobile a representative of the defendant obtained from the plaintiff a signed statement relative to the accident; that some time later the plaintiff engaged the attorney to represent her in the matter, but never authorized him to settle the case or to sign a release or draft for her; that ‘she gave it to him to handle and dispose of as he in his best judgment saw fit’; that the plaintiff's attorney, without her knowledge, settled the case with the...