Sheldon v. Bennett

• Decision Date: 25 February 1933
• Citation: 282 Mass. 240,184 N.E. 722
• Parties: SHELDON v. BENNETT et al. BENNETT v. SAME. DAVIN v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 240

184 N.E. 722

SHELDON

v.BENNETT et al.

BENNETT

v.SAME.

DAVIN

v.SAME.

Supreme Judicial Court of Massachusetts, Hampden.

Feb. 25, 1933.

Appeal from Superior Court, Hampden County; Lummus, Judge.

Suits by Muriel Sheldon, p. p. a., by Doris E. Bennett, p. p. a., and by Gordon Davin, p. p. a., against Millard H. Bennett and others. From a final decree in each case dismissing the plaintiffs' bill of complaint, plaintiffs appeal.

Affirmed.

John P. Kirby and Emerson S. Searle, both of Springfield, for appellants.

E. W. Sawyer, of Boston, and R. S. Spooner, of Springfield, for appellees.

PIERCE, Justice.

These three suits in equity were brought under G. L. (Ter. Ed.) c. 175, §§ 112, 113, and under G. L. c. 214, § 3, cl. 10, as amended by St. 1930, c. 340, § 4. The cases are before this court on appeals from a final decree in each case dismissing the plaintiffs' bill of complaint.

The oral evidence at the hearing was taken stenographically but is not here made a part of the record. In such a case the findings of fact by the trial judge are final unless they are necessarily inconsistent with the general findings. Columbian Insecticide Co. of Boston v. Driscoll, 271 Mass. 74, 77, 170 N. E. 804, and cases cited.

It is alleged in the bills of complaint, and found by the trial judge, that on June 22, 1929, one Samuel T. Bennett, a resident of Springfield, Massachusetts, was the owner of a sedan automobile and as such was the holder of a policy of liability insurance numbered 993994 in the Liberty Mutual Insurance Company. This policy was issued in Massachusetts and expired on January 1, 1930. On June 22, 1929, one Millard H. Bennett, a resident of said Springfield and the minor son of said Samuel T. Bennett, was legally operation said automobile in the State of New Hampshire with the permission of his father. The plaintiffs were riding as guest passengers. An accident happened upon a highway in the town of South Newbury in the State of New Hampshire, through the alleged negligence of Millard H. Bennett, and each of the plaintiffs received severe bodily injuries. The plaintiffs waited before bringing suits at law against Millard H. Bennett until he became of full age on February 4, 1930. The writs were dated May 6, 1930, and were returnable in the Superior Court on the first Monday of June, 1930. The Liberty Mutual Insurance Company, though duly notified of the actions, refused to undertake the defence of them. The defendant Millard H. Bennett did not appear and was defaulted in the several actions. On January 3, 1931, damages were assessed in each case by a jury and judgments were rendered on the first Monday of February, 1931, for the plaintiffs, the judgment for the plaintiff Muriel Sheldon being in the sum of $500.20 damages and $20.10 costs, the judgment of the plaintiff Doris E. Bennett being in the sum of $7,503.75 damages and $10.90 costs, and the judgment for the plaintiff Gordon Davin being in the sum of $100.05 damages and $10.90 costs.

Thereafter, by writs dated September 18, 1931, the present equity suits were instituted against said Millard H. Bennett and the Liberty Mutual Insurance Company under G. L. c. 214, § 3, cl. 10, as amended by St. 1930, c. 340, § 4, to compel the Liberty Mutual Insurance Company to pay the judgments. The answer of the defendant Liberty Mutual Insurance Company as amended denies compliance with the conditions of the policy contract relating to (1) notice of the accident, (2) notice of claims, and (3) cooperation with the insurance company in investigating and handling the resulting claims.

The policy contract is primarily the contract required by the Massachusetts compulsory insurance law. The policy is indorsed to provide indemnity against claims and suits arising as the result of accidental injuries alleged to be due to the use of the automobile described in the policy issued to Samuel T. Bennett elsewhere than upon the ways of Massachusetts. As the indemnity provided by the indorsement contained on page four of the policy was not legally compulsory the indorsement purported to state the conditions under which such extra-territorial indemnity would be provided. By the indorsement such extra-territorial protection is made available not only to the assured but also to any person operating the said automobile with the permission of the named assured, subject to the conditions of the policy and indorsement. By the unambiguous language of the indorsement the provisions of the policy, that no violation of the terms of the policy and no act or default of the assured should operate to defeat or avoid the policy so as to bar recovery by a judgment creditor, were made inapplicable to the protection provided by the indorsement, and the ‘General Conditions' of the policy, ‘C,’ relating to notice to the insurer, and ‘D,’ relating to cooperation with the insurer, were applicable.

The trial judge rightly ruled that the rights of the judgment creditor under the extra territorial protection afforded by the policy were no greater than the rights of the assured unless some other provision of the policy affects that general principle, citing Cogliano v. Ferguson, 245 Mass. 364, 139 N. E. 527. He found that all the conditions and facts which under the terms of the policy must be satisfied and proved to enable the plaintiffs to obtain the relief which they seek have been satisfied and proved except as may hereinafter appear. The coverage of the policy is extended to persons legally operating the automobile with the permission of the assured ‘in the same manner and under the same conditions' applicableto the assured. The material conditions referred to by the trial judge are: ‘Upon the occurrence of death or personal injuries or any accident covered by this Policy, the Assured shall as soon as practicable after learning thereof, give written notice with full...