Muise v. Century Indem. Co.

• Decision Date: 04 February 1946
• Citation: 65 N.E.2d 98,319 Mass. 172
• Parties: LEVI J. MUISE, administrator, v. THE CENTURY INDEMNITY COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

319 Mass. 172

65 N.E.2d 98

LEVI J. MUISE, administrator, v. THE CENTURY INDEMNITY COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 4, 1946

January 9, 1946.

Present: FIELD, C.

J., QUA, DOLAN RONAN, & WILKINS, JJ.

Insurance, Motor vehicle liability insurance. Words, "Employee," "Guest occupant."

One in the general employment of another, while riding in an automobile of the employer for the employee's own purposes and not for any purpose related to the employment, was not an "employee," and was a "guest occupant," within G. L. (Ter. Ed.) c. 90, Section 34A, as amended by St.

1935, c. 459.

BILL IN EQUITY filed in the Superior Court on April 30, 1943. The suit was heard by Greenhalge, J.

W. W. Jump, for the defendant. H. S. Avery, for the plaintiff.

RONAN, J. The plaintiff's intestate, a fisherman and a member of the crew of a vessel which was in the command of one Parsons and was engaged in deep sea fishing out of the port of New Bedford, received fatal injuries early on the morning of December 23, 1939, when an automobile owned and operated by Parsons, in which the intestate and another member of the crew of this vessel were riding, left the road in Manchester and went over an embankment. At the time of the accident, the automobile was on its way from New Bedford to Gloucester where the intestate lived. Parsons was making the trip to attend to some business in Gloucester. The intestate was going home to distribute some Christmas gifts. In an action in the Superior Court by the plaintiff against Parsons for the death and conscious suffering, the plaintiff recovered for the death on a count based upon G. L. (Ter. Ed.) c. 229, Section 5, as amended by (St. 1937, c. 406, Section 3, but was denied recovery on all the counts for conscious suffering. The plaintiff's exceptions to the direction of a verdict for Parsons on these counts were overruled in Muise v. Parsons, 312 Mass 476 , on the ground that the intestate was riding as a guest of Parsons, who was not shown to have been grossly negligent.

The plaintiff now seeks in this bill in equity filed under G. L. (Ter. Ed.) c. 214, Section 3 (10), and c. 175, Section 113, to reach and apply the indemnity furnished by the defendant to Parsons under a motor vehicle liability policy as defined in G. L. (Ter. Ed.) c. 90, Section 34A, as amended by St. 1935, c. 459, Section 2. This policy, however, did not cover any liability of Parsons for injuries to or death of a "guest occupant" as those words are defined in said Section 34A, as amended by St. 1935, c. 459, Section 1. The defendant appealed from a final decree ordering it to pay the judgment recovered against Parsons.

The only question presented for decision is whether the plaintiff's intestate was an employee of Parsons and therefore not barred as a guest occupant from having recourse to the policy issued by the defendant. A guest occupant as defined by said c. 90, Section 34A, as amended by St. 1935, c. 459, Section 1, in so far as material, is "any person, other than an employee of the owner . . . of a motor vehicle . . ., being in or upon, entering or leaving the same," except a passenger for hire.

The judgment, the payment of which is now sought, was rendered upon a verdict which was based upon a count to recover for the death of the intestate and which could not be maintained against Parsons without proof that the intestate was "not in his employment or service." G. L. (Ter. Ed.) c. 229, Section 5, as amended by St. 1937, c. 406, Section 3. The fact that the intestate was in the general employment of Parsons was not decisive. The plaintiff had the burden of showing that the intestate at the time of the accident was not engaged in the performance of his duties as an employee of Parsons, and that his transportation to Gloucester was not an incident of his work or in any way connected with his contract of employment with Parsons. The verdict for the plaintiff was equivalent to a finding that the intestate's presence in the automobile at the time of the accident had no causal relation to employment of the intestate by Parsons. Healey v. American Tool & Machine Co. 220 Mass. 236 . Ross v. John Hancock Mutual Life Ins. Co. 222 Mass. 560 . Palmer v. Boston & Maine Railroad, 227 Mass. 493 , 498.

Both the plaintiff and the defendant were bound by the material facts which were tried and settled in the action against Parsons. Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445 . Sweeney v. Frew, 318 Mass. 595. It would be a curious result if the plaintiff, having recovered a judgment on the ground that the intestate was not in the "employment or service" of Parsons at the time of the accident, could now recover against the defendant on the ground that the intestate was an employee of Parsons at the time of the accident within the meaning of the guest occupant clause of said Section 34A, which excluded from its operation an employee of Parsons. See Boston v. Nielsen, 305 Mass. 429 , 433. The plaintiff contends that the term "employee" appearing in the statutory definition of a guest occupant means one in the general employment of another, and is not restricted to an employee whose presence in the automobile of his employer is for the purpose of carrying out the terms of his employment. It is true that the word employee has a flexible meaning depending upon the context and the object to be accomplished by the written instrument in which it appears. Mengel v. Justices of the Superior Court, 313 Mass. 238 , 242. United States v. American Trucking Associations, Inc. 310 U.S. 534, 545. See Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 731-732.

The purpose of St 1935, c. 459, Section 2, amending G. L. (Ter. Ed.) c. 90, Section 34A, was to free the owner of a motor vehicle from the compulsory obligation which had theretofore been imposed upon him to provide indemnity against liability for injury to or death of a guest occupant arising out of the operation of the...