Travelers Ins. Co. v. Safeguard Ins. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; SPIEGEL
• Citation: Travelers Ins. Co. v. Safeguard Ins. Co., 346 Mass. 622, 195 N.E.2d 86 (Mass. 1964)
• Decision Date: 07 January 1964
• Parties: The TRAVELERS INSURANCE COMPANY v. SAFEGUARD INSURANCE COMPANY et al.

Page 86

195 N.E.2d 86

346 Mass. 622

The TRAVELERS INSURANCE COMPANY v. SAFEGUARD INSURANCE COMPANY et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Dec. 2, 1963.

Decided Jan. 7, 1964.

Francis H. George, Worcester, for plaintiff.

David H. Fulton and Robert Fulton, Boston, for Safeguard Ins. Co., submitted a brief.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and SPIEGEL, JJ.

SPIEGEL, Justice.

This is a bill for a declaratory decree to determine liability under two insurance policies. One was issued by the plaintiff to Consumer Wholesale Food Company, Inc. (Consumer), and is a general liability policy; the other was issued by the defendant Safeguard Insurance Company (Safeguard) to one Sifi L. Petro, also a defendant, and is an automobile liability policy.

A judge of the Superior Court made 'Findings of Fact and Order for Decree,' which we herewith summarize. Consumer operates a store in Southbridge. On May 8, 1958, one of its employees 'in the course of his employment' carried to Petro's automobile two bags of groceries which Petro had purchased in Consumer's store. The employee 'opened the door of the car and placed the bags on the rear seat of the car; and as he turned to leave the car, he pulled the door to close it, and in so doing, the fingers of Petro were caught between the door and the door jamb, causing severe injuries to Petro. Petro's car was at a standstill, the motor was not running, and Petro had not entered the car. He was standing outside the car awaiting the delivery of his purchases. * * *'

The trial judge ruled the provisions of the Safeguard policy were 'not applicable with the facts * * * found' and that there was no obligation on the part of Safeguard to pay for any injuries suffered by Petro. He also ruled that the policy of insurance issued by the plaintiff obligated it to assume the responsibility of defending Consumer against an action by Petro to recover for his injuries. A final decree was entered to that effect, and from this the plaintiff appeals. There was no error.

Concerning the policy issued by the plaintiff, the trial judge ruled that it was applicable to the facts found. 'In taking out the bags of the purchases made by Petro, * * * [the employee] was carrying out his duties as such employee. * * * Under the Travelers policy, Consumer is entitled to be covered as to its liability and Travelers is obligated to assume that responsibility.'

The plaintiff contends that the above ruling was in error but in its brief cites no law and presents no argument to support its contention. Therefore, we need not pass upon this question. Rule 13 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 698. It appears, however, to be lacking in merit.

The plaintiff argues that any liability to Petro incurred by Consumer results from the negligent act of Consumer's employee upon a theory of respondeat superior; that if Consumer becomes obligated to Petro as a result of its employee's negligence, it would have an action against the employee for reimbursement; that it Consumer brings such an action against the...