Sontag v. Galer
| Citation | 181 N.E. 182,279 Mass. 309 |
| Parties | SONTAG v. GALER et al. |
| Decision Date | 20 May 1932 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; Keating, Judge.
Suit by Leo Sontag, p. p. a., against Ida Galer and the Standard Accident Insurance Company. On report from superior court which entered interlocutory decree overruling the last-named defendant's demurrer.
Interlocutory decree reversed, and interlocutory decree entered in accordance with opinion.
H. Wise and W. H. Shea, both of Boston, for plaintiff.
G. B. Rowell and C. F. Albert, both of Boston, for defendants.
The plaintiff, who had obtained a judgment in an action for personal injuries against the defendant Ida Galer, brought this suit to establish the indebtedness of the defendant insurance company to Galer on a liability insurance policy issued by it to her, and to have the proceeds of that policy applied in satisfaction of the judgment. The insurance company filed a demurrer which was overruled, and the trial judge, being of opinion that his order so affected the merits of the controversy that the matter ought before further proceedings to be determined by the full court, reported the questions raised by the demurrer.
The plaintiff alleged, in substance, that on or about August 31, 1926, Galer was the owner of certain premises, in Roxbury, and the defendant insurance company had issued to her a landlord's public liability policy by which it undertook to indemnify her to the amount of $5,000 against loss from liability for damages on account of bodily injuries ‘accidentally sustained by any person not in the employ’ of the assured while within or upon the premises aforesaid; that on that date the plaintiff while on the premises sustained severe bodily injuries for which he brought an action against the defendant Galer. It is further alleged that the insurance company, pursuant to the provisions of the policy, by its attorney appeared and took upon itself the defense of this action on behalf of Galer, and that on April 12, 1929, the plaintiff recovered a judgment for $5,000 and costs, but that the insurance company did not within thirty days of the date of judgment, or at any time thereafter, pay to Galer or to the plaintiff any part of the judgment.
By order of court made pursuant to G. L. c. 231, § 7, cl. 11, there were filed in this suit a copy of the policy relied on, a copy of the record of the judgment of the municipal court, and a copy of the pleadings and findings filed in that court. Examination of these documents shows that the plaintiff brought an action of tort against Galer, alleging in count one that the defendant assaulted the plaintiff by throwing a heavy vessel from a great height upon his head, and in count two that the defendant carelessly, negligently and by lack of due care caused the vessel to fall upon the plaintiff's head. The answer was a general denial, with a plea of contributory negligence.
The judge who tried the case made findings to the effect that Galer had said to boys who had come upon her premises without leave that they were annoying her and if they came again she would throw something on them. On August 31, 1926, the plaintiff came on the premises and was playing with a faucet, and the defendant came out with a porcelain cooking utensil in her hand which she maliciously, wantonly and recklessly threw and struck the plaintiff on the head, causing the injuries complained of. He further found that Galer's explanation of the affair was not true, and that the injury was ‘the result of the deliberate and wanton action of the defendant in throwing the utensil hereinbefore described and striking the plaintiff upon the head’; and that the plaintiff was entitled to recover damages on the first count of the declaration in the full amount of the ad damnum claimed in the writ. A ruling was made in the superior court, without objection, that all the documents were a part of the pleadings and were to be considered upon the demurrer.
[1] Upon the allegations in the bill the defendant insurance company is not estopped from contending that the policy did not cover the assault of the insured upon the plaintiff which caused his injury. The bill does no more than to allege that the insurance company was notified of the accident and the pendency of the action and, pursuant to the provisions of the policy, its attorney appeared and answered on behalf of the defendant Galer and ‘further took upon itself the defense of the suit on behalf of the said Galer.’ It is not alleged that Galer did not protect her own interests or that the insured was prevented by any act of the insurer from so protecting her own interests, or that any harm came to the defendant Galer from the conduct of the insurer; Lunt v. AEtna Life Ins. Co. of Hartford, 261 Mass. 469, 473, 159 N. E. 461; nor is it alleged thatthe attorney for the insurance company participated in the trial of the case. No ground for estoppel is set out in the bill. Boston & Albany Railroad v. Reardon, 226 Mass. 286, 291, 115 N. E. 408;Nelson v. Wentworth, 243 Mass. 377, 379, 137 N. E. 646;Hamilton Manuf. Co. v. Lowell, 274 Mass. 477, 484, 175 N. E.73,74 A. L. R. 1213. The decision was...
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