Polito v. Galluzzo

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore WILKINS; RONAN
Citation337 Mass. 360,149 N.E.2d 375
Decision Date11 April 1958

Page 375

149 N.E.2d 375
337 Mass. 360
Joseph POLITO
v.
Amenio S. GALLUZZO 1 and another.
Supreme Judicial Court of Massachusetts, Suffolk.
Argued Dec. 5, 1957.
Decided April 11, 1958.

[337 Mass. 361]

Page 376

Maurice H. Kramer, Boston, for plaintiff.

Bertram A. Sugarman, Boston (Edward J. Barshak, Boston, with him), for defendant London Guarantee & Accident Co., Ltd.

Before [337 Mass. 360] WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.

[337 Mass. 361] RONAN, Justice.

This is an appeal from a final decree dismissing a bill against an insurance company to reach and apply the noncompulsory provisions of a liability policy issued by it to Galluzzo to the satisfaction of a judgment which the plaintiff recovered in an action of tort against Galluzzo. We have a transcript of the evidence and a report of the findings made by the judge. See Seder v. Gibbs, 333 Mass. 445, 446, 131 N.E.2d 376. The policy required the insured to give written notice of an accident as soon as practical; to forward to the insurer immediately all notices and summonses; and to coperate with and assist the insurer in the preparation and trial of the case.

The plaintiff and his son were riding on May 1, 1953, in Galluzzo's automobile, which he was operating, when the automobile suddenly left the public way and came to a stop against a tree.

The plaintiff's wife and the insured went on May 4, 1953, to the office of one Gallagher, who conducted a general insurance office in Quincy and who evidently issued the policy. The insured narrated the details of the accident which Gallagher in their presence related over the telephone to one Young, at the main office of the insurer, who was the insurer's supervisor in charge of property claims. Before the insured and the plaintiff's wife left, Gallagher gave to the wife a slip of paper on which he had written Young's name and the insurer's address together with the insurer's telephone number.

On July 6, 1953, one Kallis, an employee of the insurance company, interviewed Galluzzo and secured the details of the accident which Kallis wrote down and Galluzzo signed. Kallis gave this statement to Young on the same date. On June 16, 1953, the plaintiff's attorney wrote the defendant [337 Mass. 362] insurance company that he represented the plaintiff and claimed that Galluzzo was 'guilty of wilful, wanton and reckless misconduct and gross negligence.' Gallagher also wrote the insurance company on two occasions, to wit, April 4, 1953, and July 16, 1953, advising it of the new addresses of Galluzzo. Suit was brought against Galluzzo on September 30, 1953, and counsel for the insurance company entered an appearance for him. A physician for the insurance company examined the plaintiff. In November, 1953, Galluzzo and the insurance company entered into an agreement whereby Galluzzo agreed that any action that might be taken by the company would not be taken as an admission or assumption of liability, or as a waiver of its rights to disclaim, or would not operate by way of estoppel against it. Counsel for the insurance company sent Galluzzo on July 13, 1954, answers to interrogatories which he had prepared for his signature. Galluzzo signed them and returned them to company. Counsel for

Page 377

the company sent on October 5, 1955, by registered mail, a letter to Galluzzo advising him of the approach of the trial, notifying him that the policy required his aid in the preparation and trial of the case, and advising him to communicate with him. This letter was returned undelivered. Counsel sent an investigator to Quincy to locate Galluzzo. There was nothing to show that the investigator succeeded in finding him. Late in the afternoon of November 2, 1955, the day before the case was reached for trial, counsel sent a constable to summon Galluzzo as a witness. He made a diligent search for Galluzzo, but the judge was not satisfied that the person he summoned was the insured. Anyway the insured did not appear at the trial. It resulted in a verdict for the plaintiff. A motion for a new trial was filed and argued by counsel for the insurance company. The insurance company wrote Galluzzo the outcome of the trial with a formal disclaimer but these letters were returned. The policy besides covering compulsory insurance, so called, also covered liability to guests, and it is under this latter provision of the policy that it is attempted to impose the obligation of [337 Mass. 363] the insurer to pay the plaintiff's judgment, at least up to the amount fixed in the policy. Accordingly, the rights of the plaintiff are derivative from the insured and any defences that the insurer may have against the insured are equally...

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27 practice notes
  • John Beaudette, Inc. v. Sentry Ins. a Mut. Co., No. CIV.A. 96-10963-MBB.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 2, 1999
    ...ignores case-law which impliedly recognizes estoppel claims in injured third party suits against insurers. See Polito v. Galluzzo, 337 Mass. 360, 149 N.E.2d 375, 378 (1958) (recognizing waiver or estoppel claim by injured third party but finding it unavailable due to insurer's reservation o......
  • DiMarzo v. American Mut. Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 4, 1983
    ...pursue the trial to a conclusion and then, an adverse result having been reached at the trial, disclaim liability." Polito v. Galluzzo, 337 Mass. 360, 365, 149 N.E.2d 375 (1958); Salonen v. Paanenen, 320 Mass. 568, 572, 71 N.E.2d 227 (1947). Daly v. Employers Liab. Assurance Corp., 269 Mass......
  • Darcy v. Hartford Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 22, 1990
    ...insurer has not previously been expressly required. See Imperiali v. Pica, 338 Mass. 494, 498, 156 N.E.2d 44 (1959); Polito v. Galluzzo, 337 Mass. 360, 364-365, 149 N.E.2d 375 (1958). The vast majority of jurisdictions which have considered the issue have decided that actual prejudice to an......
  • Fisk v. Atlantic Nat. Ins. Co., No. 5544
    • United States
    • Supreme Court of New Hampshire
    • December 29, 1967
    ...is not obliged to show that it was prejudiced by such failure. Rose v. Reagan, 344 Mass. 223, 226, 181 N.E.2d 796; Polito v. Galluzzo, 337 Mass. 360, 365, 149 N.E.2d 375; Imperiali v. Pica, 338 Mass. 494, 498, 156 N.E.2d The record in this case does not support a finding of waiver by the de......
  • Request a trial to view additional results
27 cases
  • John Beaudette, Inc. v. Sentry Ins. a Mut. Co., No. CIV.A. 96-10963-MBB.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 2, 1999
    ...ignores case-law which impliedly recognizes estoppel claims in injured third party suits against insurers. See Polito v. Galluzzo, 337 Mass. 360, 149 N.E.2d 375, 378 (1958) (recognizing waiver or estoppel claim by injured third party but finding it unavailable due to insurer's reservation o......
  • DiMarzo v. American Mut. Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 4, 1983
    ...pursue the trial to a conclusion and then, an adverse result having been reached at the trial, disclaim liability." Polito v. Galluzzo, 337 Mass. 360, 365, 149 N.E.2d 375 (1958); Salonen v. Paanenen, 320 Mass. 568, 572, 71 N.E.2d 227 (1947). Daly v. Employers Liab. Assurance Corp., 269 Mass......
  • Darcy v. Hartford Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 22, 1990
    ...insurer has not previously been expressly required. See Imperiali v. Pica, 338 Mass. 494, 498, 156 N.E.2d 44 (1959); Polito v. Galluzzo, 337 Mass. 360, 364-365, 149 N.E.2d 375 (1958). The vast majority of jurisdictions which have considered the issue have decided that actual prejudice to an......
  • Fisk v. Atlantic Nat. Ins. Co., No. 5544
    • United States
    • Supreme Court of New Hampshire
    • December 29, 1967
    ...is not obliged to show that it was prejudiced by such failure. Rose v. Reagan, 344 Mass. 223, 226, 181 N.E.2d 796; Polito v. Galluzzo, 337 Mass. 360, 365, 149 N.E.2d 375; Imperiali v. Pica, 338 Mass. 494, 498, 156 N.E.2d The record in this case does not support a finding of waiver by the de......
  • Request a trial to view additional results

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