Rose v. Franklin Sur. Co.
| Decision Date | 31 January 1933 |
| Citation | 183 N.E. 918,281 Mass. 538 |
| Parties | ROSE v. FRANKLIN SURETY CO. et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; F. T. Hammond, Judge.
Suit by Frank Rose, administrator, against the Franklin Surety Company and others. Decree for plaintiff, and named defendant appeals.
Affirmed.
J. T. Connolly and R. Landau, both of Boston, for plaintiff.
M. Z. Kolodny, of Boston, for defendants.
The plaintiff's intestate on December 14, 1930, while an employee of one Piers as helper on a milk truck received injuries which resulted in his death. The truck was being operated on a public highway by one Neves, who was also an employee of Piers and acting in the course of his employment. The injuries and death of the plaintiff's intestate were caused by the negligence of Neves in the operation of the truck. The plaintiff as administrator brought an action at law against Neves for the conscious suffering and death of his intestate. On default judgment was entered for the plaintiff and damages were assessed. At the time of the injury of the plaintiff's intestate, Piers was not insured under the Workmen's Compensation Act (G. L. [Ter. Ed.] c. 152) but did hold a valid policy of insurance issued by the defendant Franklin Surety Company pursuant to the compulsory motor vehicle insurance statute (St. 1925, c. 346, G. L. [Ter. Ed.] c. 90, §§ 34A-34J). Proper demand was made on the defendant insurance company for the payment of the execution issued on the judgment against Neves but payment thereof was not made. The plaintiff has brought a suit in equity under the provisions of G. L. (Ter. Ed.) c. 214, § 3, cl. 10, to reach and apply the obligation of the defendant insurance company under the policy issued to Piers in satisfaction of the judgment against Neves. The trial judge made findings of fact and entered a final decree for the plaintiff, from which decree the defendant insurance company has appealed to this court.
The primary object of the compulsory motor vehicle insurance statute is to provide security for the payment of damages for the injury or death of travellers on public highways caused by the negligent operation of motor vehicles. Through the negligent operation of the insured's motor vehicle by Neves injury and resulting death came to the plaintiff's intestate while he was a traveller on a highway. The plaintiff was not obliged to sue the employer of his intestate. He chose, as was his right, to bring suit against Neves, the actual wrongdoer, whose liability as well as the amount of damages has now been legally fixed in a judgment. The plaintiff here seeks to have the security of the policy issued by the defendant insurance company applied to the payment of that judgment.
The security afforded by an insurance policy issued pursuantto the statute is not limited to the payment of a judgment against the insured. Such a policy provides ‘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. * * *’ G. L. (Ter. Ed.) c. 90, § 34A. Neves was such a person. McNeil v. Powers, 266 Mass. 446, 165 N. E. 385;Boyer v. Massachusetts Bonding & Ins. Co., 277 Mass. 359, 178 N. E. 523;Johnson v. O'Lalor, 279 Mass. 10, 180 N. E. 525. Because of this provision of the statute the defendant company contracted to provide indemnity not only for the insured but as well for Neves and for any other person who during the life of the policy with the insured's consent might become responsible for the operation of his motor vehicle on a public highway. Such persons are beneficiaries under the contract of insurance entered into by the insurer and the insured. The plaintiff, having established the liability of Neves to pay damages, now asks the insurance company to perform its contractual obligation to indemnify and protect Neves against loss by reason of that liability.
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