Rogan v. Liberty Mut. Ins. Co.

• Decision Date: 03 February 1940
• Citation: 25 N.E.2d 188,305 Mass. 186
• Parties: ROGAN v. LIBERTY MUT. INS. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 186

25 N.E.2d 188

ROGAN

v.LIBERTY MUT. INS. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 3, 1940.

Suit by James Rogan against the Liberty Mutual Insurance Company, and another, to reach and apply in satisfaction of judgments the obligation of automobile liability insurer. From a decree dismissing the bill, plaintiff appeals.

Affirmed.Appeal from Superior Court, Suffolk County; Kirk, Judge.

H. J. Booras, of Boston, for plaintiff.

W. E. Carley and E. B. Cass, both of Boston, for defendant Insurance Co.

LUMMUS, Justice.

On July 2, 1937, the defendant Walter F. Davis, who was insured by the corporate defendant with respect to the operation of his automobile under the Massachusetts compulsory motor vehicle liability insurance act, G.L. (Ter.Ed.) c. 90, §§ 34A to 34J, so negligently operated his automobile upon a public way in Massachusetts as to cause bodily injury to the plaintiff and damage to the property of his employer. Liability for both was covered by the policy. The plaintiff and his employer were awarded judgments against Davis, and the employer assigned his judgment to the plaintiff. The plaintiff then brought this bill against Davis and the insurer to reach and apply in satisfaction of the judgments the obligation of the insurer.

Davis lived in Boston from a time as early as January 1, 1937, and owned the automobile covered by the policy. On September 10, 1937, Davis ceased to cover New England as a salesman and was assigned to cover Maryland and Virginia. He gave up his apartment in Boston on that day, and sent his furniture to Baltimore, where it arrived on October 1, 1937, and where he intended to live. He himself arrived in Baltimore about October 9, 1937. Before November 1, 1937, he and his wife took a house in Baltimore, and have lived there ever since. He did not surrender his Massachusetts registration plates for 1937, and used them on his automobile throughout the year 1937 without registering his automobile in Maryland or any other State; but that, in the view that we take of the case, is immaterial.

The plaintiff and his employer began their actions against Davis in the Municipal Court of the City of Boston on November 26, 1937. The only service, made on November 27, 1937, was by leaving a summons at the apartment from which Davis had moved in the preceding September, described as ‘his last and usual place of abode.’ Defaults were entered against Davis, who did not appear, and damages were assessed and judgments were rendered against him in his absence.

The policy required the insurer, with respect to both bodily injury and property damage, ‘to pay on behalf of the insured * * * all sums which the insured shall become obligated to pay by reason of the liability imposed on him by law’ for damage to others within the scope of the policy. The statutes affording a remedy for an injured plaintiff against an insurer issuing a liability policy require as a prerequisite to suit ‘the recovery of a final judgment’ against the insured wrongdoer. G.L.(Ter.Ed.) c. 175, §§ 112, 113; c. 214, § 3(10). Mathewson v. Colpitts,...