Salonen v. Paanenen

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 320 Mass. 568,71 N.E.2d 227
• Parties: SALONEN v. PAANENEN et al.
• Decision Date: 06 January 1947

320 Mass. 568
71 N.E.2d 227

SALONEN
v.
PAANENEN et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Jan. 6, 1947.

Suit in equity by Martha Salonen against Lydia J. Paanenen and an insurance company issuing automobile liability policy to named defendant, for satisfaction by insurance company of plaintiff's judgment against named defendant for injuries sustained in automobile accident. From the decree, the plaintiff appeals.

Affirmed.

[71 N.E.2d 228]

Appeal from Superior Court, Plymouth County; J. V. Sullivan, Judge.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and SPALDING, JJ.

A. F. Lyon, of Rockland, for plaintiff.

H. B. White, of Boston, for defendant Ins. Co.

SPALDING, Justice.

The plaintiff, having recovered a judgment against the defendant Paanenen (hereinafter called the assured), brought this bill in equity to reach and apply the obligation of the defendant insurance company (hereinafter called the company)

[71 N.E.2d 229]

under a motor vehicle liability policy issued by it to the assured. See G.L.(Ter.Ed.) c. 175, § 113; c. 214, § 3(10). The judge made voluntary findings of fact and ordered the bill dismissed. From a final decree entered pursuant to this order the plaintiff appealed. The evidence is reported.

The facts may be summarized as follows: The judgment which the plaintiff is seeking to satisfy stems from an action of tort brought by her against her sister, the assured, to recover compensation for personal injuries which she sustained on July 6, 1940, while riding as a guest in an automobile owned and operated by the assured. At the time of the accident the assured was the holder of a motor vehicle liability policy issued by the company. The policy contained a co-operation clause,¹ and also a provision that ‘no action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all of the terms of this policy.’

On July 18, 1940, twelve days after the accident, one Meehan, a representative of the company, called upon the assured and obtained from her a statement of what she knew about the accident. Meehan, who had written down what the assured had told him, then read the statement to her, and she stated that it was true and correct but refused to sign it until it had been approved by her husband. The latter, however, withheld his approval and the assured never signed it. In it the assured stated that just prior to the accident she noticed an ‘old Ford travelling in the opposite direction’; that she did not remember much after that; that she moved over a little closer to her right side of the road; that her ‘auto must have gone off the road and struck a tree on the right side’; and that she was unable to say whether or not the Ford had crowded her off the road. She also stated that her sister ‘did not object to the manner or the speed of * * * [her] auto on this occasion.’

When the case came on for trial before an auditor, the assured repudiated material portions of the statement and corroborated a substantially different version of the accident given by the plaintiff, which in substance was that the assured was travelling at forty to forty-five miles per hour and her automobile swerved from one side of the road to the other several times; that the plaintiff objected to the manner in which the assured was driving; and that the assured without slackening her speed looked around to comment about some milk that the plaintiff had spilled and while she was doing this the automobile went off the road. The assured also testified that she did not see the ‘old Ford’ referred to in the statement. She admitted that she desired to see her sister compensated for her injuries. After the auditor's hearing and before his finding, the company wrote the assured on March 3, 1943, advising her that it would not satisfy any judgment that might be rendered against her and that it ‘reserve[d] all rights and defences which it * * * [had] under the * * * policy,’ assigning as its reasons that the assured had failed to cooperate and that the furnishing of inaccurate information with respect to the happening of the accident had impeded its investigation and preparation of the case for trial. The letter also stated that the assured was at liberty at her own expense to engage counsel to protect her interest and to have him associated with its counsel, and that the company would continue the defence of the case under its reservation of rights.

On April 22, 1943, the company wrote to the assured informing her that the auditor had found for the plaintiff in the amount of $2,400 and that it would continue in the defence of the action subject to the reservation previously made; the letter also stated that she was ‘at liberty to engage * * * [her] own counsel as previously advised’ but at her own expense. The case was then tried to a jury, which returned a verdict in an amount slightly larger than that found by the auditor. Exceptions brought to this court by the defendant were

[71 N.E.2d 230]

overruled.² After judgment was entered the company informed the assured that pursuant to its reservation of rights in its letters of March 3, 1943, and April 22, 1943, it would not honor the execution.

The judge found that the assured had violated the co-operation clause and that the disclaimer by the company was justified. He also found that notice of the disclaimer was given to the assured as soon as possible after the grounds for it were discovered by the company; that no unfair advantage was taken of the assured; and that the company was not estopped to deny liability under the policy.

We think that the finding of the judge that the assured violated the ‘co-operation’ clause cannot be said to be plainly wrong. We reach this conclusion without reliance on the finding of the judge, which is not supported by the evidence, that at the jury trial, because of her repudiation of her statement, the assured was not called as a witness by the company's counsel who defended her at that trial.³ The evidence amply warranted a finding that the assured, in her testimony, repudiated in material respects her version of the accident contained in the statement. Either the statement or the testimony was false; both could not be true. The intentional furnishing of false information of a material nature either before or at the trial would be a breach of the co-operation clause. Searls v. Standard Accident Ins. Co., 316 Mass. 606, 56 N.E.2d 127.Brogdon v. American Automobile Ins. Co., 290 Mich. 130, 135, 287 N.W. 406; Bassi v. Bassi, 165 Minn. 100, 205 N.W. 947;Coleman v. New Amsterdam Casualty Co., 247 N.Y. 271, 276, 160 N.E. 367, 72 A.L.R. 1443;Francis v. London Guarantee & Accident Co., 100 Vt. 425, 430, 138 A. 780;United States Fidelity & Guaranty Co. v. Wyer, 10 Cir., 60 F.2d 856;Ocean Accident & Guarantee Corp., Ltd., v. Lucas, 6 Cir., 74 F.2d 115, 98 A.L.R. 1461. See note in 72 A.L.R. 1446. As we said in the Searls case cited above, ‘Co-operation requires that there must be an effort to tell the truth no matter who is helped or hurt. There is nothing more mischievous in litigation or destructive to the administration of justice than the deliberately untruthful witness, he apparently aiding in preparation for trial or committing perjury on the stand.’ At page 609 of 316 Mass., at page...