Oliveria v. Preferred Accident Ins. Co. of New York

• Decision Date: 30 November 1942
• Citation: 45 N.E.2d 263,312 Mass. 426
• Parties: OLIVERIA v. PREFERRED ACCIDENT INS. CO. OF NEW YORK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 426

45 N.E.2d 263

OLIVERIA

v.PREFERRED ACCIDENT INS. CO. OF NEW YORK et al.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 30, 1942.

Action by Margaret Oliveria, administratrix, against Preferred Accident Insurance Company of New York and another to reach and apply the obligation of the named defendant on a liability policy to pay judgment recovered by plaintiff for the death of her husband. From a decree dismissing her bill, the administratrix appeals.

Decree affirmed, with costs.Appeal from Superior Court, Bristol County; Baker, Judge.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and COX, JJ.

H. W. Radovsky, of Fall River, for plaintiff.

F. E. Smith and W. J. Fenton, both of Taunton, for defendant.

QUA, Justice.

This is a bill in equity brought under G.L. (Ter.Ed.) c. 175, § 113, and c. 214, § 3(10), to reach and apply the obligation of the defendant insurance company on a liability policy to pay a judgment recovered by the plaintiff for the death of her husband, Manuel Oliveria, against the defendant Louis Oliveria, who is the son of herself and Manuel. See Oliveria v. Oliveria, 305 Mass. 297, 25 N.E.2d 766.

Manuel, the deceased, owned a motor vehicle. He was the ‘named assured’ in a policy covering that vehicle, wherein the defendant insurance company agreed to pay in behalf of the assured ‘in accordance with the ‘Massachusetts Compulsory Automobile Liability Security Act’' all sums which the assured should become obligated to pay by reason of the liability imposed upon him by law for damages for bodily injury, including death, sustained ‘by any person or persons' through the operation of his motor vehicle on the ways of this Commonwealth. The section of the policy which contained this provision was headed, ‘I. Coverage A. Bodily Injury Liability-Statutory (Upon the ways of the Commonwealth of Massachusetts).’ The policy further provided that the word ‘Assured’ should include not only the ‘named Assured’ but also any other person responsible for the operation of the motor vehicle with the express or implied consent of the ‘named Assured.’ On September 2, 1935, while the policy was in force, the defendant Louis Oliveria operated the motor vehicle on a highway in this Commonwealth with the consent of Manuel, the named assured, and operated it so negligently that he caused the death of Manuel.

The trial judge rightly dismissed the bill.

In MacBey v. Hartford Accident & Indemnity Co., 292 Mass. 105, 197 N.E. 516, 106 A.L.R. 1248, we held after careful consideration that a motor vehicle liability policy as defined in G.L. (Ter.Ed.) c. 90, § 34A, did not cover liability for bodily injuries suffered by the named assured himself through the operation of the vehicle by another with the named assured's consent. We there pointed out that this statute disclosed an intent to draw a sharp line of distinction between the assured himself on the one hand and ‘others' to whom damages are to be paid on the other hand. The assured himself does not belong to the class of the ‘others' against whose claims the company has agreed to provide protection. See Rose v, Franklin Surety Co., 281 Mass. 538, 183 N.E. 918;Cain v. American Policyholders' Ins. Co., 120 Conn. 645, 183 A. 403. Compare Adams v. American Employers Ins. Co., 292 Mass. 260, 198 N.E. 147. It becomes necessary for the plaintiff to distinguish the present case from the MacBey case. This she attempts to do on two grounds, which we will consider in turn.

First, the plaintiff contends that the policy in this case affords a coverage broader than is required by the statute and broader than was afforded by the strictly statutory policy dealt with in the MacBey case. The basis of this contention is that the policy, instead of following precisely the wording of the statute and covering the assured against loss ‘by reason of the liability to pay damages to others' for bodily injuries or death ‘sustained * * * by any person,’ omits the words ‘to others' and covers the assured against loss ‘by reason of the liability imposed upon him by law for damages' because of bodily injury or death ‘sustained by any person or persons.’ It is argued that the omission of the words ‘to others' takes this policy out of the rule established in the MacBey case and leaves the insurer bound to indemnify a...