O'Roak v. Lloyds Cas. Co.

• Decision Date: 28 March 1934
• Citation: 285 Mass. 532,189 N.E. 571
• Parties: O'ROAK v. LLOYDS CASUALTY CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 532

189 N.E. 571

O'ROAK

v.LLOYDS CASUALTY CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 28, 1934.

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

Suit in equity by Percy O'Roak against the Lloyds Casualty Company and others. From a final decree dismissing the bill, plaintiff appeals.

Reversed, and decree for plaintiff ordered.

J. H. Cinamon and S. E. Seegel, both of Boston, for appellant.

G. B. Rowell, of Boston, for appellees.

RUGG, Chief Justice.

This is a suit in equity under G. L. (Ter. Ed.) c. 175, §§ 112, 113, and chapter 214, § 3, cl. 10, to enforce the liability of the defendant Lloyds Casualty Company (hereaftercalled the insurer) under a policy issued by it pursuant to the compulsory motor vehicle insurance law. G. L. (Ter. Ed.) c. 90, § 33A-34J. The trial judge made findings and rulings, and entered a decree dismissing the bill. The evidence is reported pursuant to G. L. (Ter. Ed.) c. 214, § 24. The plaintiff's appeal brings the case here.

Findings of fact, in substance, are that the defendant Mack was the owner of a motor vehicle which was insured by the insurer. The defendant McGuinness was an employee of Mack. Shortly before nine o'clock on the evening of November 27, 1931, Mack and McGuinness, together with two others, were in the motor vehicle in front of a theatre. Mack said to McGuinness that he with a friend was going to the theatre, that McGuinness could take and use the motor vehicle for the purpose of giving a girl a ride until 10:30 or 11 p. m., and that he must be sure to have the motor vehicle back in front of the theatre not later than 11 p. m. McGuinness drove the motor vehicle away and did not return it. Some time in the early morning of November 28, 1931, McGuinness, while driving the motor vehicle in Somerville, was in an accident involving the plaintiff. For personal injuries then received through the negligence of McGuinness, the plaintiff recovered judgment against him, which is unsatisfied and which the plaintiff seeks to enforce against the insurer by this suit. The trial judge found nad ruled that McGuinness while operating the motor vehicle was not at any time an agent, employee or servant of Mack and that he was operating the motor vehicle solely and exclusively on business of his own; and further found and ruled that at the time of the accident McGuinness was not operating the motor vehicle with the express or implied consent of Mack but was operating it at that time contrary to the express direction and wishes of Mack.

So far as these are findings of fact they must be accepted as true. They are supported by evidence and are not plainly wrong. Martell v. Dorey, 235 Mass. 35, 40, 126 N. E. 354. They form the basis of this decision.

The insurer, pursuant to the obligation imposed by its policy of insurance, appeared in defence of the action brought by the plaintiff against McGuinness, but McGuinness signed a nonwaiver agreement whereby he agreed that the insurer disclaimed liability and did not waive any rights or defences by conducting the defense of that action. The trial judge found that neither McGuinness nor Mack was misled by the conduct of the insurer. His ruling that the insurer was not thereby estopped from contending that he was not liable to the plaintiff was right. Liddell v. Standard Accident Ins. Co., 283 Mass. 340, 187 N. E. 39.

The trial judge found that the ‘policy of insurance was in the standard form of the Massachusetts motor vehicle liability policy.’ There is no such standard form under our statutes. It is provided by G. L. (Ter. Ed.) c. 175, § 113A, that the form of policy proposed by the insurer must be filed with the commissioner of insurance for at least thirty days, unless approved by him earlier, and is subject to his approval or disapproval. In this respect the statute differs from that as to fire insurance policies, whereby a standard form is established, G. L. (Ter. Ed.) c. 175, § 99, and resembles that as life insurance policies, G. L. (Ter. Ed.) c. 175, § 132. In any event, however, the policy must contain the matters of substance required by the statutes. AEtna Life Ins. Co. v. Hardison, 199 Mass. 181, 186, 85 N. E. 407;Vance v. Burke, 267 Mass. 394, 166 N. E. 761. It must be assumed, therefore, that the policy provided ‘indemnity for or protection to the insured and any person responsible for the operation of the insured's motor vehicle with his express or implied consent against loss by reason of the liability to pay damages to others for bodily injuries * * * arising out of the ownership, operation, maintenance, control or use upon the ways of the commonwealth of such motor vehicle.’ G. L. (Ter. Ed.) c. 90, § 34A. The question in the case at bar is whether McGuinness was such a ‘person.’ The words just quoted must be interpreted in the light of the dominant purpose of the statute of which they form a part. That dominant purpose is to make provision for security in the collection of compensation for damages sustained without fault by travelers on the highway through the negligent operation of motor vehicles. These words are not merely terms of contract in a policy of insurance; they express deliberate legislative design for promotion of human welfare and public safety. The statute was enacted after thorough investigation by a legislative committee of the existing evils and the appalling toll of human life and suffering arising from such negligent operation. In re Opinion of the Justices, 251 Mass. 569, 594, 595, 601, 608, 147 N. E. 681;Rose v. Franklin Surety Co., 281 Mass. 538, 540, 183 N. E. 918. It is a remedial statute and is to be construed liberally to suppress the mischief intended to be put down and to advance the remedy which it was intended to afford. De Costa v. Ye Craftsman Studio, Inc., 278 Mass. 315, 317, 180 N. E. 151. No motor vehicle can be registered until it is insured or other provision made for the protection of those injured through its negligent use or operation on public ways as provided in G. L. (Ter. Ed.) c. 90, §§ 1A, 34A, 34B, 34D. The history of the investigations preceding the enactment of the compulsory motor vehicle law and its dominating purpose, set forth in Re Opinion of the Justices, 251 Mass. 569, 147 N. E. 681, warrant the inference that the intention was that all motor vehicles, so far as registered in this commonwealth, should be protected in the manner provided by the statute while upon public ways. The statutes prohibit the operation of an unregistered motor vehicle upon the highway. G. L. (Ter. Ed.) c. 90, §§ 2, 9; Potter v. Gilmore, 282 Mass. 49, 50, 184 N. E. 373, 87 A. L. R. 1462. The significant words in the quoted statute as applied to the facts of the case at bar are that ‘indemnity’ is afforded to ‘any person responsible for the operation’ of the insured's motor vehicle ‘with his express or implied consent.’ On the night in question McGuinness was ‘responsible’ to Mack, the insured, for ‘the operation’ of the motor vehicle of the latter under the terms of the bailment whereby he acquired possession of it. The words ‘express or implied consent’ primarily modify not the word ‘operation’ but the word ‘responsible.’ Those words do not convey the thought of consensual relationship between the owner and bailee at the moment liability may arise. They imply a possession of the motor vehicle with consent of the owner and responsibility to him. The words ‘person responsible’ in this context are broad...