Sheehan v. Goriansky

• Decision Date: 05 April 1947
• Citation: 72 N.E.2d 538,321 Mass. 200
• Parties: SHEEHAN v. GORIANSKY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 200

72 N.E.2d 538

SHEEHAN

v.GORIANSKY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 5, 1947.

Bill in equity by John F. Sheehan, administrator of estate of John F. Sheehan, Jr., deceased, against Lev Goriansky and the Liberty Mutual Insurance Company to apply the obligation of insurance company under a policy of motor vehicle liability insurance issued to individual defendant's wife to satisfy a wrongful death judgment previously recovered against individual defendant by reason of his negligent operation of his wife's automobile. From a decree ordering insurer to pay the judgment and dismissing the bill without prejudice as to individual defendant, insurer appeals.

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

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

D. J. Lyne and W. A. Ryan, both of Boston, for plaintiff.

J. P. Sullivan, of Boston, for defendant Liberty Mut. Ins. Co.

WILKINS, Justice.

Following the decision in Sheehan v. Goriansky, 317 Mass. 10, 56 N.E.2d 883, which was an action of tort to recover for the death of the plaintiff's intestate occasioned by the operation of an automobile by Goriansky, the plaintiff obtained a judgment, which is unsatisfied. He now brings this bill in equity against Goriansky and the Liberty Mutual Insurance Company to reach and apply the obligation of the insurance company under a policy of motor vehicle liability insurance issued to Goriansky's wife, Carola E. Goriansky, the owner with whose permission Goriansky was operating the automobile on the fatal occasion. See G.L.(Ter.Ed.) c. 175, § 113, and c. 214, § 3(10). The judge filed ‘findings and order for decree.’ He found that the judgment was covered by the policy, and that Goriansky was impecunious and could not pay it. From a decree ordering the insurance company to pay the judgment and dismissing the bill without prejudice as to Goriansky, the insurance company appealed. The evidence is reported.

The question for our determination is whether the judge was plainly wrong an finding that the judgment is a liability imposed for a death ‘caused by accident’ within the terms of the policy, the material portions of which are: ‘Coverage B Bodily injury liability-(This coverage is optional). To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages * * * because of bodily injury, including death at any time resulting therefrom, sustained by any person or person in * * * the divisions hereinafter defined * * * caused by accident and arising out of the ownership, maintenance or use of the motor vehicle. Definition divisions. Division 1. Guest occupant upon the ways of Massachusetts. A person who is a guest occupant of the motor vehicle while upon the ways of the Commonwealth of Massachusetts. Division 2.Extraterritorial guest occupant. A person who is a guest occupant of the motor vehicle while off the ways of the Commonwealth of Massachusetts. * * * ‘Guest occupant’ and ‘extraterritorial guest occupant’ as used herein shall mean guest occupant as defined in exclusion (a) of this policy.' In exclusion (a) appears the definition: “Guest occupant' shall mean any person, other than an employee of the owner or registant of a motor vehicle or of a person responsible for its operation with the owner's or registrant's express or implied consent, being in or upon, entering or leaving the same, except a passenger for hire in the case of a motor vehicle registered as a taxicab or otherwise for carrying passengers for hire.'

The judgment was upon a verdict for the plaintiff upon a count ‘based on wilful, wanton, and reckless operation of the automobile.'¹ The judge without objection had charged the jury ‘that if they found any one of the three elements present, either wilful, wanton or reckless, then they would be warranted in returning a verdict for the plaintiff.’ The jury did not ‘designate whether they found liability based upon wilful conduct, wanton conduct, or reckless conduct,’ and they were not required to do so. In Sheehan v. Goriansky, 317 Mass. 10, 14, 56 N.E.2d 883, 885, we said: ‘If the deceased were on the automobile, he was there without invitation and in the circumstances was a trespasser to whom the defendant owed the duty to refrain from wantonly or recklessly exposing him to danger.’ ‘If the jury concluded that the defendant knew that the deceased was on the running board, it was open to them to infer that the defendant's conduct was in disregard of probable harmful consequences to the deceased and in violation of the duty to refrain from wantonly, or recklessly exposing him to danger’ ( 317 Mass. 17, 56 N.E.2d 886).

The deceased, even though a trespasser, was a ‘guest occupant’ within the meaning of the policy, and was within its quoted coverage, whatever that comprised. Westgate v. Century Indemnity Co., 309 Mass. 412, 35 N.E.2d 218. The parties so concede, but the company contends that the death was not within that coverage, because it was occasioned by wilful, wanton, or reckless conduct and was not ‘caused by accident.’

Inasmuch as the obligation, if any, which the plaintiff seeks to reach, arose under the guest occupant provision, any defense which would be available to the company against Goriansky is available against the plaintiff. Sanborn v. Brunett, 315 Mass. 231, 232, 52 N.E.2d 384.Salonen v. Paanenen, 320 Mass. 568, 575, 71 N.E.2d 227. The verdict and judgment were presumably based upon the declaration, at least in the absence of evidence to the contrary. Miller v. United States Fidelity & Guaranty Co., 291 Mass. 445, 447, 197 N.E. 75;Klefbeck v. Dous, 302 Mass. 383, 388, 19 N.E.2d 308. The plaintiff and the company were bound by the material facts which were tried and settled in the action against Goriansky. Miller v. United States Fidelity & Guaranty Co., 291 Mass. 445, 448, 449, 197 N.E. 75.Levinton v. Poorvu, 293 Mass. 338, 341, 200 N.E. 9.Muise v. Century Indemnity Co., 319 Mass. 172, 174, 65 N.E.2d 98. They were thus bound by a determination that Goriansky's liability was based upon at least one of three possible grounds, namely, wilful conduct, wanton conduct, reckless conduct.

Wilful conduct injuring a guest occupant is not within the coverage of the policy.² Wilful means intentional. Commonwealth v. Welansky, 316 Mass. 383, 397, 55 N.E.2d 902;New England Trust Co. v. Paine, 317 Mass. 542, 548, 549, 59 N.E.2d 263, 158 A.L.R. 262. The ‘undoubted rule applicable to ordinary insurance’ is that an insurance policy indemnifying an insured against liability due to his wilful wrong is void as against public policy. Wheeler v. O'Connell, 297 Mass. 549, 554, 9 N.E.2d 544, 111 A.L.R. 1038. See Sontag v. Galer, 279 Mass. 309, 312, 313, 181 N.E. 182; Gast v. Goldenberg, 281 Mass. 214, 216, 217, 183 N.E. 257;Farrell v. Eastern Bridge & Structural Co., 291 Mass. 323, 324, 197 N.E. 68;Miller v. United States Fidelity & Guaranty Co., 291 Mass. 445, 449, 197 N.E. 75. There is nothing inconsistent with this doctrine in Shamlian v. Equitable Accident Co., 226 Mass. 67, 115 N.E. 46.

It does not follow, however, that conduct which is merely wanton or reckless resulting in injury to a guest occupant is outside the coverage of the policy. We realize that in criminal prosecutions and cases relating to personal injuries this court has stated that wanton or reckless conduct ‘is the legal equivalent of intentional conduct.’ Commonwealth v. Welansky, 316 Mass. 383, 401, 55 N.E.2d 902, 911, and cases cited. Thus, in Banks v. Braman, 188 Mass. 367, 369, 74 N.E. 594, it was said that where there is wanton or reckless conduct ‘there is willful, intentional conduct, whose tendency to injure is known, or ought to be known, accompanied by a wanton and reckless disregard of the probable harmful consequences from which others are likely to suffer, so that the whole conduct together is of the nature of a willful, intentional wrong.’ And in the Welansky case, we said, ‘The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another’ (316 Mass. 399, 55 N.E.2d 910). See Restatement: Torts, § 500. See also Scaia's Case, 320 Mass. 432, 433,...