Rose v. Regan
| Decision Date | 23 April 1962 |
| Citation | 344 Mass. 223,181 N.E.2d 796 |
| Parties | Scott ROSE, Junior, et al. v. Edward REGAN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Philander S. Ratzkoff, Boston, for defendant American Employers' Ins. co.
Harold B. Dondis, Boston (Arthur F. Flaherty, Boston, with him), for plaintiffs.
Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and SPIEGEL, JJ.
The plaintiffs, Scott Rose, Junior, Nora P. Rohan, and Beatrice Stuart, having each recovered a judgment against the defendant Regan (the insured) brought this bill in equity to reach and apply in obligation of the defendant American Employer's Insurance Company (the insurer) under the noncompulsory guest coverage of a motor vehicle liability policy. G.L. c. 175, §§ 112, 113; c. 214, § 3(10). The insurer appeals from the final decree which held it liable for each judgment. There is a statutory report of the material facts and a report of all the evidence. The policy contained 'notice' and 'coperation' clauses and a provision that 'No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy * * *.' The notice clause included this sentence: 'If claim is made or suit is brought against the insured, he shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.'
These facts are shown: Regan duly notified the insurer of the accident which occurred on May 24, 1957. He then lived at 181 Monticello Avenue, Dorchester, with his mother. He was a truck driver and seldom at home. The family moved to Oakwood Street, Dorchester, between June 11 and June 14, 1957. Regan did not notify the insurer of his change of address. Writs in the Rose and Rohan cases were served on June 25, 1957, by leaving the summons at 181 Monticello Avenue. Regan did not know of that service. On or about July 8, 1957, he received notice by card from the court of his default in those cases. The writ in the Stuart action was served at the Oakwood Street address on July 17, 1957, by leaving the summons but Regan did not receive the summons. The three actions were removed to the Superior Court, the Rose and Rohan cases on July 23, 1957, and the Stuart case on August 7, 1957. Regan received, but did not forward, a letter (or letters) 1 dated August 27 1957, from Thomas E. Leen, Esquire, the attorney for Rose and Rohan, with notice of motions to default for failure to appear and answer, to be heard on September 10, 1957, and suggesting that he see his insurer.
The insurer learned of the defaults in the Rose and Rohan cases by a telephone call from Mr. Leen, and on September 12, 1957, filed appearances and answers, had the defaults removed and, as the judge found, 'took control of the proceedings * * * without exerting itself to make contact with Regan, and had it done so, it would have learned that Regan had not been served.'
The insurer's investigator had in June, 1957, called three times at 181 Monticello Avenue: on June 3 he found no one there; on June 11 Regan's mother said she would have him call the investigator the next day; on June 14 the investigator found that the family had moved and he could not find the new address. The insurer's next effort to find Regan was in September, 1957. On September 27 the insurer learned of Regan's Oakwood Street address. Regan called on the insurer on October 2, 1957, and gave a signed statement which told that, about July 8, 1957, he had received two cards stating 'Rose vs. Regan' and 'Rohan vs. Regan' which he did not send to the insurer 'as I did not know I was supposed to'; that he was summoned and found guilty about July 16, 1957, of driving so as to endanger, and fined $50, and he did not notify the insurer of that summons; that he had received no 'suit papers' but did receive the motion to default on August 27, 1957, and did not notify the insurer 'as I figured they already knew about it, as I had [promptly] reported the accident.'
On October 16, 1957, the insurer disclaimed liability in a letter to Regan which stated:
Regan testified: 'I think I received a letter saying that the insurance company wasn't going to stand behind me.' Later, when asked as to its contents, he answered that the letter had said that 'the insurance company was not going to stand behind me in this action.'
The judge found 'no failure on the part of Regan to forward * * * every demand, notice, summons or other process, nor any failure on Regan's part to co-operate with the insurer on the Stuart case'; that the letter of October 16 referred only to the Rose case and that 'no such reservation letter was sent on the Stuart case.' The judge ruled that the insurer was estopped from disclaiming liability in the Rose and Rohan cases.
1. The judge's finding that there was no breach of the coperation and notice clauses in the Stuart case was a reasonable conclusion. Regan received no process or notice and knew of no reason to call the insurer in respect of that action. In the circumstances Regan's failure to notify the insurer of his change of address was not material. Imperiali v. Pica, 338 Mass. 494, 501, 156 N.E.2d 44. We do not reach the issue whether the letter of October 16, 1957, can reasonably be construed to refer to the Stuart case.
2. There was a material breach of the notice clause in respect of the Rose and Rohan cases and it is not relevant whether the insurer was prejudiced. Polito v. Galluzzo, 337 Mass. 360, 365, 149 N.E.2d 375; Imperiali v. Pica, 338 Mass. 494, 498, 156 N.E.2d 44.
The insurer's general appearance on September 12, 1957, made a significant and irrevocable change in Regan's position. We assume the sheriff's return gave the court jurisdiction. Union Sav. Bank of Boston v. Cameron, 319 Mass. 235, 236, 65 N.E.2d 313, and cases cited. If the return was false Regan would have had an action against the sheriff to the extent of his damage. Ibid. But the general appearance gave a basis of jurisdiction other than the return and rendered the return inconsequential. Thus Regan's only possible right over, other than against the insurer, was taken away. If this was in violation of the contract or negligent, Regan could recover against the insurer, Abrams v. Factory Mut. Liability Ins. Co., 298 Mass. 141, 143, 10 N.E.2d 82; Salonen v. Paanenen, 320 Mass. 568, 574, 71 N.E.2d 227, but that right does not extinguish the significance of the insurer's...
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