Mullen v. Hartford Accident & Indem. Co.

• Decision Date: 29 June 1934
• Citation: 191 N.E. 394,287 Mass. 262
• Parties: MULLEN v. HARTFORD ACCIDENT & INDEMNITY CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 262

191 N.E. 394

MULLEN

v.HARTFORD ACCIDENT & INDEMNITY CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1934.

Appeal from Superior Court, Suffolk County; Pinanski, Judge.

Suit in equity by Jane A. Mullen against the Hartford Accident & Indemnity Company and another. From a final decree for plaintiff, named defendant appeals.

Affirmed.

R. H. Lee, of Boston, for plaintiff.

J. J. Mulcahy, of Boston, for defendants.

PIERCE, Justice.

This is a suit in equity to enforce the payment of a judgment recovered by the plaintiff against one Sidney Sacks, who was insured under a policy issued by the defendant company. The policy was issued in accordance with section 34A, inserted in chapter 90 of the General Laws by St. 1925, c. 346, § 2, and provided, as appears by a copy in the record, indemnity to the insured ‘against loss by reason of the liability to pay damages to others for bodily injuries * * * sustained during the term of this policy by any person [with exceptions not here material] * * * arising out of the ownership, operation, maintenance, control or use upon the ways of said Commonwealth.’ The title of said chapter 346 is ‘An Act requiring owners of certain motor vehicles and trailers to furnish security for their civil liability on account of personal injuries caused by their motor vehicles and trailers.’ The case was heard in the superior court upon an agreed statement of facts, and a decree was entered establishing the indebtedness of the defendant Hartford Accident & Indemnity Company. That company appealed to this court.

Shortly stated, pertinent agreed facts are as follows: In the late afternoon of July 26, 1932, the defendant Sidney Sacks left his truck parked on a public way in front of his place of business and negligently permitted a quantity of oil to escape from a crack in its crank case. This oil leaked out and ran onto a portion of said public highway adjoining Sacks' premises. Sacks knew of the crack in the crank case during the day of the accident, that it had existed a few days prior thereto, and that oil was leaking therefrom onto the highway. By inference it appears that Sacks drove his truck away sometime before 8:15 p. m. July 26, 1932. As an agreed fact it appears that about 8:15 p. m. the plaintiff, while crossing the highway, in the exercise of due care, slipped and fell, as a result of the oil negligently allowed to accumulate on the street, and suffered personal injuries. The plaintiff brought an action against Sidney Sacks in the municipal court of the city of Boston and recovered judgment. The company took no part in the tort action and refused to pay the execution. This suit was brought against the company to reach and apply the obligation of Sacks more than thirty days after demand on the company. G. L. c. 175, § 112; c. 214, § 3(10).

The Hartford Accident & Indemnity Company ‘raises but one issue in this case,...