Saltzberg v. Lumbermens Mut. Cas. Co.

• Decision Date: 15 September 1950
• Citation: 94 N.E.2d 269,326 Mass. 351
• Parties: SALTZBERG v. LUMBERMENS MUT. CASUALTY CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 351

94 N.E.2d 269

SALTZBERG v. LUMBERMENS MUT. CASUALTY CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 15, 1950

Argued May 3, 1950.

M S. Glaser, Boston, J. Stone, Boston, for plaintiff.

D. H. Fulton Boston I. Gordon, Boston, for defendant Lumbermens Mut Casualty Co.

Before QUA, C. J and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

WILLIAMS, Justice.

In this suit in equity the plaintiff seeks to reach and apply the proceeds of a Massachusetts compulsory motor vehicle liability insurance policy as defined in G.L. (Ter.Ed.) c. 90, § 34A, as amended, to the satisfaction of a judgment obtained by him against one William M. Mavrides. It is agreed that the plaintiff's wife received personal injuries in Quincy on August 9, 1947, by reason of the negligent operation of a motor vehicle owned by the defendant Catherine Mavrides and operated at the time with her consent by her husband, the said William M. Mavrides. The motor vehicle was insured by the defendant insurance company under a policy issued in accordance with the Massachusetts compulsory insurance law. The plaintiff's wife recovered judgment in an action of tort for 'bodily injuries' against William M Mavrides on December 7, 1948, in the sum of $6,933.33. On the same day the plaintiff recovered judgment in the sum of $3,201.92 against the same defendant in an action of tort for consequential damages consisting of 'medical, nursing, hospital and surgical services in connection with and on account of the bodily injuries sustained by his wife.' The limits of liability provided by the policy of insurance were $5,000 and $10,000. The defendant insurance company has paid on account of the wife's judgment the sum of $5,000 with interest and costs, but has refused to pay the plaintiff's judgment for consequential damages. Due and sufficient demand has been made on the defendant insurer for the payment of the plaintiff's judgment, and more than thirty days have elapsed since said judgment was rendered.

While an answer was filed by Catherine Mavrides, no prayer for relief against her was included in the plaintiff's bill and no evidence was offered that her husband was acting as her agent. The judgment debtor, William M. Mavrides, was not joined as a party defendant. See Warecki v. United States Fidelity & Guaranty Co., 270 Mass. 233, 170 N.E. 49. A demurrer filed by the defendant insurance company, hereinafter referred to as the defendant, is treated as waived by the conduct of the defendant in proceeding to trial upon the merits. Driscoll v. Smith, 184 Mass. 221, 223, 68 N.E. 210; Berenson v. H. G. Vogel Co., 253 Mass. 185, 187, 148 N.E. 450. After ruling 'that the liability of the defendant insurer * * * was satisfied by the payment of the wife's execution,' the judge ordered that a decree be entered dismissing the bill without costs. The plaintiff has appealed from a final decree dismissing the bill entered in accordance with this order.

No contention is made that the liability of the defendant to the plaintiff's wife has not been satisfied in full by the payment to her of $5,000 with interest and costs. The question for decision is whether the plaintiff can recover from the defendant an amount in excess of that already paid to his wife. Under the policy in question the obligation of the insurer is to indemnify or protect the person insured or any person responsible for the operation of the insured motor vehicle with his consent 'against loss by reason of the liability to pay damages to others for bodily injuries, including death * * * or consequential damages consisting of expenses incurred by a husband * * *'. (Emphasis supplied.) As Mavrides was operating the motor vehicle with the owner's consent, he was insured under the terms of the owner's policy. The obligation of the insurer, as above stated, is restricted by the terms of the statute, G.L. (Ter.Ed.) c. 90, § 34A, as amended, to the payment of 'the amount or limit of at least five thousand dollars on account of injury to or death of any one person, and, subject to such limits as respects injury to or death of one person, of at least ten thousand dollars on account of any one accident resulting in injury to or death of more than one person * * *.' It is the contention of the plaintiff that the consequential damage to the husband is an independent injury within the meaning of this statutory limitation and that therefore the accident is one 'resulting in injury to * * * more than one person'. It seems clear that the term 'injury' as used in the clauses 'injury to or death of one person' and 'injury to or death of more than one person' refers to the 'bodily injuries' because of which a loss to the insured and a consequent obligation of indemnity or protection on the part of the insurer may result.

We have held that the payment by a husband of his wife's medical expense due to her personal injury, in a sense is an injury to the husband because of the resulting impoverishment of his estate. Wilson v. Grace, 273 Mass. 146, 154, 173 N.E. 524; Thibeault v. Poole, 283 Mass. 480,...